Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v McKay [2022] NSWCATOD 95 Hearing dates: 10 - 12 August 2022 Date of orders: 26 August 2022 Decision date: 26 August 2022 Jurisdiction: Occupational Division Before: Balla ADCJ, Principal Member Dr C Newberry, Senior Member Dr I Faragher, Senior Member D Telford, General Member Decision: (1) Pursuant to section 149C of the Health Practitioner Regulation National Law (NSW), Dr McKay's registration is suspended for three months from the date of these orders. (2) Dr McKay is to pay the costs of the Health Care Complaints Commission pursuant to Clause 13, Schedule 5D of the Health Practitioner Regulation National Law, as agreed or assessed. Catchwords: OCCUPATIONS - Medical practitioners - Misconduct and discipline - Unsatisfactory professional conduct - Improper or unethical conduct - Professional misconduct - Protective orders Legislation Cited: Health Practitioner Regulation National Law (NSW), ss 3A, 139B (1)(l), 139E, 149A, 149B, 149C,150, 150A Health Care Complaints Act 1993 (NSW), s 90B(1) Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Clyne v NSW Bar Association (1960) 104 CLR 186 Health Care Complaints Commission v Chahoud [2022] NSWCATOD 36 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25 Health Care Complaints Commission v Selim [2021] NSWCATOD 27 Lee v Health Care Complaints Commission [2012] NSWCA 80 Parker v Comptroller of Customs (2009) 83 ALJR 494 Prakash v Health Care Complaints Commission [2006] NSWCA 153 R v Byrne (1995) 193 CLR 501 Texts Cited: Clinical Excellence Commission, 2014,"Open Disclosure Handbook" Medical Board of Australia "Good Medical Practice: A Code of Conduct for Doctors in Australia" March 2014 Royal Australasian College of Surgeons' Position Paper "Guideline for Open Disclosure" February 2015 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Gary Donald McKay (Respondent) Representation: Counsel: A T Britt (Applicant) P J Griffin SC (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Moray & Agnew (Respondent) File Number(s): 2020/00203092 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) the publication by any person or entity of the name of the person set out in the Schedule to the Application (described as patient A in these Reasons) is prohibited REASONS FOR DECISION 1. Dr McKay completed a Bachelor of Medicine at the University of Newcastle in 2000 and completed a Fellowship of General Surgery with the Royal Australian College of Surgeons in 2008. He specialises in colorectal surgery. 2. On 15 November 2018, Dr McKay performed a colonoscopy on patient A at the Mater Private Hospital in North Sydney. 3. On 21 December 2018 the Medical Council received a letter from the Hospital informing the Council that it was terminating the accreditation of Dr McKay at the Hospital because of events which occurred during that colonoscopy. 4. On 11 February 2019, an urgent hearing pursuant to s 150 of the Health Practitioner Regulation National Law (NSW) (the "National Law") was convened. The delegates decided to suspend Dr McKay's registration to practice and referred the matter to the Health Care Complaints Commission. 5. Later that year, Dr McKay applied to have the decision suspending his registration set aside. On 2 September 2019, after a s 150A hearing, the Council found there had been a sufficient change in Dr McKay's circumstances and lifted the suspension. However, the Council imposed practice conditions on Dr McKay's registration to protect the health and safety of the public. 6. On 23 June 2021, Dr McKay applied to the Council for the removal of the conditions on his registration. On 20 July 2021, the Council convened a s 150A hearing and removed the conditions on his registration. 7. The Health Care Complaints Commission separately determined to prosecute a Complaint against Dr McKay arising out of the same facts pursuant to s 90B(1) of the Health Care Complaints Act 1993 (NSW). It is that Complaint which was heard by this Tribunal. A copy of the Complaint is attached to these Reasons. 8. In his Reply, Dr McKay admits the facts underlying Complaints One, Two and Three. He does not admit Complaint Four. Complaint One 1. Patient A, who was then 37, started having some issues with rectal bleeding and was referred to Dr McKay whom he first saw on 8 November 2018. Dr McKay examined patient A and told him that he thought he had a tumour. 2. On 15 November 2018 patient A was admitted to the Mater Hospital for a colonoscopy. Patient A understood that meant he would be put under a general anaesthetic and Dr McKay would look around his colon through a camera. 3. Dr McKay admits that during the procedure: 1. He inappropriately invited Dr Hill (the anaesthetist attending at the procedure) to conduct a digital rectal examination of patient A while patient A was under anaesthesia and without his knowledge or proper informed consent1 and without a valid clinical reason [1] ; and 2. He took a non-clinical photograph of patient A with his mobile phone, recording the examination performed by Dr Hill [2] . 1. There is evidence as to what occurred in the operating theatre from the scout nurse, the scrub nurse, the hospital Surgical Services Manager, Dr Hill and Dr McKay. Only Dr McKay gave evidence. 2. When Dr McKay inserted the colonoscope he discovered a large mass in the rectum. He said that he was not sure what it was, as it did not look like anything he had seen before. He suspected a rare type of tumour. He was shocked at how much blood there was. He washed out a blood clot and discovered what appeared to be a bleeding point which seemed to be oozing. He abandoned the colonoscopy. The examination 1. The scout nurse heard Dr McKay say that the surgery would not be proceeding any further. She then heard Dr McKay say to Dr Hill, "Put on your gloves and have a feel of the tumour. It's a once in a lifetime opportunity". Dr Hill agreed that those were the words used by Dr McKay. While the scout nurse was cleaning up after the procedure, she saw Dr Hill put on blue non-sterile gloves, walk down to the end of the bed, and put one or two fingers into patient A's rectum. As he did this, she heard both doctors giggling. The scout nurse then saw Dr McKay was holding a mobile phone that he was pointing towards Dr Hill, and she could see him taking photographs of the patient whose legs were in stirrups with Dr Hill's fingers in his rectum. Dr McKay said, "I'm taking these photos to send to all your anaesthetist mates so they can see you with your fingers stuck up the patient's arse". 2. The scout nurse immediately reported the incident to the Surgical Services Manager at the hospital. The Manager recalls that the scout nurse told her that Dr McKay had asked Dr Hill to feel a tumour because it was such a big one and it was a "once off opportunity" or something like that and that Dr Hill had examined the patient. Dr McKay had pulled out his phone and taken a photograph of Dr Hill and said something like "We can send this to all your mates". The Manager said she went to the theatre where Dr McKay had said to her "I'm in trouble aren't I? … 'Should I get rid of the photos?" and she had said to him "Absolutely you should". 3. The scrub nurse said that Dr McKay had said to Dr Hill - "You should come and feel this. You won't feel anything like it again". She saw Dr Hill put on gloves, walk towards the patient's feet and stand between the patient's legs. She then saw Dr McKay take a mobile phone from his desk, hold it upright and heard him say to Dr Hill in a joking manner "We finally have evidence of you doing work" and "maybe we should send this to… " 4. Dr McKay has always admitted that he invited Dr Hill to perform the examination. In his first letter to the Mater Hospital dated 30 November 2018 he accepted that he had asked Dr Hill to put a glove on to feel the rectal tumour but said he did so in the context of his professional relationship with Dr Hill. The size of the patient's rectal tumour was a unique clinical presentation that he wished to discuss with Dr Hill. Dr McKay said he did not consider this was inappropriate or outside the consent obtained from the patient. 5. Dr McKay repeated this in his next letter to the Hospital dated 20 December 2018. He said that Dr Hill was a fully qualified medical practitioner with whom he had worked closely for many years. They regularly discussed difficult colorectal cases and Dr McKay would seek Dr Hill's input. Dr McKay told the Hospital he had exercised his professional judgment to discuss the unique clinical presentation with Dr Hill and that he did not consider this was inappropriate or outside the consent obtained from the patient. 6. Patient A said that, at a consultation on 27 November 2018, Dr McKay told him that during the operation he had asked for a second opinion from the anaesthetist. Patient A had assumed that this meant the anaesthetist had looked at his tumour on a camera on a screen. Dr McKay spoke to patient A again on 1 February 2019. Patient A said that Dr McKay told him that he should have been asked to consent to being examined by Dr Hill and apologised for being unprofessional. 7. At the s 150 hearing on 11 February 2019, Dr McKay told the delegates that, as he had often worked with Dr Hill in developing countries where occasionally lines of demarcation between specialties were blurred, he had not thought that his request for Dr Hill to examine the patient was unreasonable, but now, in retrospect, he thought it was unreasonable. He agreed that the conversation at the time was a little bit lighthearted and that saying, "This is a once in a lifetime opportunity", was unprofessional. 8. Dr McKay told us that, as patient A's consent had not been obtained, he accepts that it was completely inappropriate to have asked Dr Hill to perform an examination on patient A, even if it had been for clinical experience or knowledge. He now accepts that there was no clinical reason for Dr Hill to have performed the examination. The photographs 1. Dr McKay did not initially admit to having taken photographs. He told the Hospital in his first letter that he denied that he had taken several photographs on his mobile telephone. He said he had motioned as if he was going to take a photograph so that an observer may have thought that he had. He said that he had acted in a joking manner which was clearly inappropriate, and he regretted doing so and causing concern to others. This letter is the subject of Complaint 2 Particular 1 (a), discussed later in these Reasons. 2. In his second letter to the Hospital Dr McKay again denied having ever taken a photograph or photographs. He again said he had motioned that he was going to take a photograph, so that an observer may have thought that he had. He also denied deleting any photographs from his phone. He said it had been clearly wrong to have acted as if he had taken a photograph and he now appreciated he had caused alarm to others. 3. Patient A said that in the telephone conversation on 1 February 2019 Dr McKay told him that he had pretended to take a photograph of Dr Hill while Dr Hill undertook the digital examination. It is unclear to us whether this conversation is admitted by Dr McKay as we have discussed later in these Reasons. We have found, in relation to Complaint Two, that Dr McKay did say those words and that he was intending to convey the same version of events as given to the Hospital in the two letters. 4. It was only at the s 150 hearing on 11 February 2019 that Dr McKay actually admitted to having taken the photographs. He said that he had had a brain explosion, pulled out his phone and taken two photographs of Dr Hill and had said "I'll share it with every anaesthetist in Sydney." He told the delegates that, as soon as he had said it, he realised how stupid and unprofessional it was and that he had breached his duty of care. He denied that it was a photograph of Dr Hill with his finger in the rectum, but rather a photograph of Dr Hill's head between the patient's knees. 5. Dr McKay has told us that he fully accepts and acknowledges that taking photographs at the time was wrong, amounted to a serious lapse of judgment on his part and he had completely failed in that moment to recognise his role as an advocate for his vulnerable, unconscious patient. Complaint One – Finding 1. We accept the evidence of the scout nurse which is consistent in relevant details with the evidence of Dr Hill and the Surgical Services Manager. We also note the admissions by Dr McKay and find that the Health Care Complaints Commission has shown that, during the procedure on 15 November 2018, Dr McKay: 1. inappropriately invited Dr Hill to conduct a digital rectal examination of patient A while patient A was under anaesthesia and without his knowledge or proper informed consent and without a valid clinical reason; and 2. took a non-clinical photograph of patient A with his mobile phone, recording the examination performed by Dr Hill. 1. The Health Care Complaints Commission has invited us to find, and Dr McKay admits, that the conduct amounts to unsatisfactory professional conduct because it was improper or unethical [3] . We have discussed later in these Reasons the legal definitions of improper and unethical we have used in making our findings. 2. In deciding whether the conduct was improper and/or unethical, we have taken into account the opinion of the expert retained by the Health Care Complaints Commission, Dr Adusumilli, a general & colorectal surgeon. He said: 1. Patient A's consent to Dr McKay performing a colonoscopy did not directly extend to Dr Hill. However, it is not uncommon for other medical staff to examine patients in the operating theatre environment depending on the area being examined, the clinical necessity, and the intent of the person extending the invitation. In this case there was no clinical reason for Dr McKay to request Dr Hill to perform a digital rectal examination. Inviting Dr Hill to perform the examination fell below, but not significantly below, the conduct expected of a practitioner. 2. It is inappropriate to take non-clinical photographs of patients, particularly patients in vulnerable positions, without their consent. Dr McKay's taking of the photographs and then suggesting he would distribute the photographs for non-clinical reasons, was significantly below the conduct expected of a practitioner. 1. We take into account that Dr McKay's conduct is inconsistent with the Medical Board of Australia's publication "Good Medical Practice: A Code of Conduct for Doctors in Australia" March 2014 (the "Code of Conduct") at 3.2.1, 3.2.2 and 3.2.6 which relevantly provide: 3.2 A good doctor–patient partnership requires high standards of professional conduct. This involves: 3.2.1 Being courteous, respectful, compassionate and honest. 3.2.2 Treating each patient as an individual. 3.2.6 Recognising there is a power imbalance in the doctor-patient relationship, and not exploiting patients physically …" 1. We also take into account that Dr McKay's conduct is inconsistent with the Royal Australasian College of Surgeons' Position Paper on Informed Consent issued in February 2015. 2. We are satisfied that Dr McKay's conduct was both improper and unethical. We accordingly find that the Health Care Complaints Commission has established Complaint One. Complaint Two Complaint Two Particular 1 1. Dr McKay admits Complaint Two Particular 1 which is that: 1. He provided false and/or misleading information during the Mater Hospital investigation, when he denied that he had taken a photograph of Dr Hill conducting a digital rectal examination of patient A: 1. On 30 November 2018, in correspondence to the Hospital; 2. On 20 December 2018, in correspondence to the Hospital; 1. We understand that the Hospital wrote to Dr McKay on 27 November 2018 foreshadowing that it was considering terminating his accreditation at the Hospital. However, apparently pursuant to an arrangement between the parties, the letter itself is not in evidence. 2. Complaint Two Particular 1 (a) relates to Dr McKay's response to the letter from the Hospital. We have already referred to the relevant contents of the letter. While Dr McKay told the Hospital that he had asked Dr Hill to feel the rectal tumour, he said it was in the context of his professional relationship with Dr Hill, so it was not inappropriate or outside the consent obtained from the patient. In that letter he also denied having taken any photographs and said he had only acted as if he were taking photographs. 3. We have found that Dr McKay inappropriately invited Dr Hill to conduct a digital rectal examination of patient A without his knowledge or proper informed consent and without a valid clinical reason and that Dr McKay took a non-clinical photograph of patient A with his mobile phone, recording the examination performed by Dr Hill. We also take into account that this ground of the Complaint is admitted by Dr McKay. 4. Accordingly, we are satisfied that the Health Care Complaints Commission has shown that in this letter Dr McKay provided false and misleading information to the Hospital which was investigating what had occurred during the procedure on 15 November 2018. 5. Apparently, the Hospital terminated Dr McKay's accreditation after it received Dr McKay's letter dated 30 November 2018. The letter dated 7 December 2018 is again not in evidence. Dr McKay replied to the letter and said he would be appealing that decision. That second letter dated 20 December 2018 is the document referred to in Complaint Two Particular 1 (b). 6. In that letter, Dr McKay said he was disheartened that they had found he had not been completely candid in his letter dated 30 November 2018. He said he had reflected on the incident and responded honestly as to matters of fact and his intentions. As we have said earlier in these Reasons, he again denied that he had in fact taken photographs on his mobile. 7. By reason of our earlier findings, and the admission by Dr McKay, we are satisfied that the Health Care Complaints Commission has shown that in this letter Dr McKay again provided false and misleading information to the Hospital which was investigating what had occurred during the procedure on 15 November 2018. Complaint Two Particular 2 1. This Complaint relates to the telephone conversation Dr McKay had with patient A on 1 February 2019, which we have already mentioned. A later part of the same conversation is the subject of Complaint Three. 2. The Health Care Complaints Commission says that on 1 February 2019 Dr McKay engaged in improper or unethical conduct when he failed to adequately disclose what had in fact occurred when he said to patient A that "I pretended to take a photograph". 3. Patient A says that on 1 February 2019 Dr McKay called him and said 'Its serious are you sitting down? I can't be your surgeon anymore." Dr McKay had explained that during the colonoscopy he had been under stress, the tumour was quite unique, and he had wanted the anaesthetist to give a second opinion. Dr McKay said he should have sought patient A's consent for that to happen and apologised for being unprofessional. He said he had pretended to take a photograph of Dr Hill while he undertook the digital examination. Dr McKay told him that nurses had complained that he (patient A) had been sexually assaulted or raped but that Dr McKay sympathised with Dr Hill. 4. Patient A said that immediately after the telephone call he thought that what had happened in the operating theatre was pretty bad and he felt violated. After he found out the details, he felt disgusted. When he prepared his statement in May 2019, he had been seeing a psychologist who had diagnosed him with PTSD, and he said he was still affected by what had happened. 5. In his affidavit sworn on 28 January 2021 Dr McKay said he accepted and acknowledged that he had been dishonest in failing to disclose to patient A that he had taken two photographs of Dr Hill. He said that, at the time, he had not considered that the photographs were of patient A, he had deleted them, and he was otherwise embarrassed about the incident. He said he accepted that, with the benefit of hindsight, he ought to have made an accurate and complete disclosure to patient A at an earlier time and ought to have disclosed all the details regarding his inappropriate and unprofessional conduct, including the fact that he had taken photographs, albeit that they were deleted on the day. 6. In cross examination at this Inquiry Dr McKay added that although his motive for taking the photographs was to get the expression on Dr Hill's face, patient A's knees were visible in the photograph so that when he had said that it was not a photograph of patient A, he had been nit picking and was not being truthful. 7. Dr McKay admits he took the photographs. While he now says that he does not remember having said he had "pretended" to take a photograph, he agreed that he had not told the truth to patient A. We are satisfied he did use those words and he was intending to convey the same version as he had given to the Hospital in the two letters. We find that the Health Care Complaints Commission has established that Dr McKay did not adequately disclose that he had taken the photographs to patient A. Complaint Two – Finding 1. The Health Care Complaints Commission has invited us to find, and Dr McKay admits, that Dr McKay's conduct in writing those two letters and failing to adequately disclose the taking of the photographs to patient A was unsatisfactory professional conduct because it was improper or unethical. 2. We take into account that Dr Adusumilli considers that Dr McKay's failure to fully disclose what had occurred to patient A was below the standard expected of a medical practitioner. 3. We take into account that Dr McKay's conduct is inconsistent with paras 8.10.1, 8.10.2, 3.10.3 and 3.10.5 of the Code of Conduct which relevantly provide: "8.10 Doctors have responsibilities and rights relating to any legitimate investigation of their practice or that of a colleague … Good medical practice involves: 8.10.1 Cooperating with any legitimate inquiry into the treatment of a patient and with any complaints procedure that applies to your work. 8.10.2 Disclosing to anyone entitled to ask for it, information relevant to an investigation into your own or a colleague's conduct, performance or health. 3.10 Adverse events When adverse events occur, you have a responsibility to be open and honest in your communication with your patient, to review what has occurred and to report appropriately. When something goes wrong you should seek advice from your colleagues and from your professional indemnity insurer. Good medical practice involves: … 3.10.3. Explaining to the patient as promptly and fully as possible in accordance with open disclosure policies, what has happened and the anticipated short-term and long-term consequences. … 3.10.5 Complying with any relevant policies, procedures and reporting requirements." 1. We also take into account that Dr McKay's conduct in Complaint Two Particular 2 is inconsistent with the Clinical Excellence Commission's Open Disclosure Handbook published in 2014 at p 7 which requires open disclosure being a "discussion with a patient and/or their support person(s) about a patient safety incident which could have resulted, or did result in harm to that patient while they were receiving health care". 2. We also take into account that Dr McKay's conduct is inconsistent with the Royal Australasian College of Surgeons' Position Paper "Guideline for Open Disclosure" published in 2015 at p 2 which relevantly provides: "THE OPEN DISCLOSURE PROCESS An open disclosure meeting should occur in a timely manner. At the open disclosure meeting the most appropriate medical personnel relevant to the patient's care should be present ... The senior surgeon should clearly outline what has occurred and how it has impacted upon the patient." 1. We are satisfied that Dr McKay's conduct was both improper and unethical. We accordingly find that the Health Care Complaints Commission has established Complaint Two. Complaint Three 1. Dr McKay admits that he said to patient A in that telephone conversation on 1 February 2019, "Do you want Dr Hill's number to call him and tell him that you were not going to press charges?" [4] 2. Dr McKay explained to us that, on 1 February 2019, Dr Hill had called him and told him that a complaint had been made to the police concerning the conduct of Dr Hill during the procedure. Dr McKay said he had then called patient A to see if this was the case. He conceded that there had been a self-interest in making the call because he also wanted to find out whether patient A was pressing charges against him. He does not concede that the call was unethical but does admit it was improper. 3. We are satisfied that by saying these words Dr McKay was attempting to persuade patient A to not complain to the police about the incident. 4. We are satisfied that is conduct is inconsistent with 3.2.6 of the Code of Conduct which we have already referred to. 5. We find that Dr McKay's conduct, in trying to influence patient A in respect of possible criminal charges, was not only below the standards of conduct to be expected of medical practitioners and thus improper but also contrary to moral precepts and in contravention of a professional code of conduct and thus unethical. 6. We accordingly find that the Health Care Complaints Commission has established Complaint Three. Complaint Four 1. In Complaint Four the Health Care Complaints Commission says that Dr McKay is guilty of professional misconduct as he engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration [5] . 2. Dr McKay says that his conduct does not amount to professional misconduct. 3. The determination of whether conduct amounts to professional misconduct has, as its starting point, an objective assessment of Dr McKay's conduct against the standard of conduct reasonably expected of an equivalent practitioner. Importantly, the gravity of professional misconduct is not to be measured by reference to the worst case but by the extent to which the conduct departs from "proper" or "reasonably expected" standards [6] . 4. In Chen v Health Care Complaints Commission [7] Basten JA held: "The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. The phrase "unsatisfactory professional conduct" is broadly defined by reference to 12 separate categories of conduct relating to professional practice. … There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. …" 1. We are satisfied that the conduct of Dr McKay is sufficiently serious to justify suspension or cancellation of his registration for the following Reasons: 1. We accept that is not unusual for jokes to be made in the operating theatre environment to lighten what could be considered a stressful environment [8] . We are not persuaded however that this is what occurred. We are satisfied that at the time, Dr McKay thought his interaction with Dr Hill was funny. The scout nurse said he was giggling. The scrub nurse said that Dr McKay's comments were made in a joking manner. Dr McKay said that he and Dr Hill often worked together and they had a tendency to banter. He said he got carried away when he was joking around with Dr Hill. In our opinion this cannot be simply described as a jocular incident in an operating theatre. At the invitation of Dr McKay, Dr Hill inserted his fingers into the rectum of patient A. Patient A was unconscious. Patient A had not consented to the examination. Dr McKay took photographs of patient A while he was in this state. He joked about whether he would send the photographs to other doctors. We agree with the description used by counsel for the Health Care Complaints Commission – patient A was being used as a prop for a joke. We consider this a very serious and significant departure from the standard expected of a medical practitioner. 1. We also consider Dr McKay's failure to openly disclose what he had done, firstly to his employer and then to patient A, to be a very serious departure from the conduct expected of a medical practitioner. As Dr McKay conceded, he did this out of self-interest because he was concerned at the possible consequences, including the loss of his job and criminal charges. We take into account that Dr McKay wrote those two misleading letters to the Hospital after he had had time to reflect and then made a deliberate decision to not fully disclose what had occurred. Being ethical and trustworthy are fundamental requirements of a practitioner [9] . In Health Care Complaints Commission v Chahoud [10] the Tribunal adopted the following passage from the restricted decision in Health Care Complaints Commission v Selim [11] : "It is trite to say that the public requires and expects from a medical practitioner transparently honest conduct in every aspect of their dealing with the public, a patient and with other sections of healthcare organisations/structures. Every aspect of the medical practitioner's actions, undertaken on behalf of a patient, must be shrouded in transparent honesty. This is so fundamental to the trust the public needs to have in a medical practitioner, that a failure in this aspect of the patient/practitioner relationship will, in our view, generally satisfy the requirement of section 139E(a) of the National Law. There could be no argument, which we can envisage, to contradict the proposition that the public need to be protected against exposure to medical practitioners who lack integrity." 1. Counsel for Dr McKay conceded that the regulatory system cannot function optimally if medical practitioners are not honest. In HCCC v Shrimpton [12] , the Tribunal held: "It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with the regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities." 1. We find that the Health Care Complaints Commission has established Complaint Four. Legal Principles 1. In arriving at this decision, we have applied these legal principles. Burden of proof 1. The onus is on the Health Care Complaints Commission to establish the grounds of the Complaint. To make any finding we must be "comfortably satisfied" that the matter has been established on the balance of probabilities [13] . Improper or unethical conduct 1. In Complaints One, Two and Three the Health Care Complaints Commission relies on s 139B(1)(l) of the National Law which defines unsatisfactory professional conduct as any improper or unethical conduct. Those terms are not defined in the National Law and should be given their ordinary meaning. 2. The relevant ordinary meanings of improper include "not in accordance with truth, fact reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong" [14] . If Dr McKay's conduct was not in conformity with standards of professional conduct and practice it may be regarded as improper [15] . 3. Unethical conduct is arguably a more serious matter than improper conduct. "Unethical" is defined in the Macquarie Dictionary as meaning immoral or contrary to moral precepts and, secondly, as relating to contravention of a professional code of conduct [16] . Protective Orders The law 1. A finding of professional misconduct means that Dr McKay engaged in sufficiently serious conduct which could justify suspension or cancellation of his registration. It does not mean the registration must be suspended or cancelled. 2. The legislation provides that, on a finding of professional misconduct, the Tribunal may suspend or cancel the practitioner's registration, [17] impose a fine [18] and caution or reprimand the practitioner, impose conditions, order the practitioner to undergo treatment or counselling, order the practitioner to complete an educational course, order the practitioner to report on the practitioner's practice and order the practitioner to seek and take advice, in relation to the management of the practitioner's practice [19] . 3. The orders are not intended to punish the practitioner, but to protect the public. [20] 4. The underlying principles are: "The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so." [21] 1. And: "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." [22] 1. In appropriate cases the punitive effect of the Order will be relevant: "Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order." [23] Orders sought by the parties 1. The Health Care Complaints Commission seeks a suspension of Dr McKay's registration for three months. 2. The Health Care Complaints Commission also asks for two conditions to be placed on his registration after the conclusion of his suspension. The first would be to require him to meet with a senior colleague as mentor and reflect on his day-to-day practice and issues which may arise. The Health Care Complaints Commission believes that it is necessary for Dr McKay to have the level of oversight of his practice that a mentor would provide. The second proposed condition is for Dr McKay to have a further period of treatment with a psychologist. He did see two psychologists for treatment in 2019. 3. Counsel for Dr McKay submitted that a reprimand is appropriate. Protective Order – Consideration 1. In applying these considerations, the Tribunal takes into account: Is the conduct likely to recur? 1. We accept that, as at 15 November 2018, Dr McKay was under a high level of stress in his various workplaces, including bullying and marginalisation from senior surgical colleagues. This had caused him to become professionally isolated. 2. Professor Kenny, a psychologist who saw Dr McKay three times for the purpose of these proceedings, considered that this stress, together with a tendency for Dr McKay to act impulsively, meant that he acted out of character when he was in the operating theatre with a close friend, Dr Hill. His misleading of the Hospital and patient A occurred because he was in survival mode at the time. She considered he had assiduously addressed all of the issues and those changes will be protective against further incidents. 3. Dr McKay considers that his conduct likely stemmed from his lack of work-life balance and work stressors and has taken active and meaningful steps to address these issues. These include: 1. Reorganising his practice to address concerns about professional isolation, by working in a group practice, reducing his working hours, attending courses on "Operating with Respect" and "Professional Boundaries - a Health Professional 's Guide", as well as maintaining his continuing medical education, focusing on his mental health, including regularly practising meditation and mindfulness and focusing on his health and fitness by walking, kayaking, sailing, golfing and cycling. 2. Engaging with a mentor as initially required by a condition on his registration. They still have an informal relationship, and the mentor has seen the significant steps Dr McKay has taken to address issues in his work practices and improve his work-life balance. They regularly operate together, and he has not seen Dr McKay exhibit the type of behaviour which is the subject of the Complaint. The mentor believes Dr McKay appreciates the significance of his actions and remains truly regretful of his momentary lapse of judgment. 1. We accept that there is little prospect that Dr McKay would behave the same way in an operating theatre. Good Character 1. A number of people have provided statements as to their assessment of the character, competence and standards of practice of Dr McKay. It is not necessary for us to describe these in detail in these Reasons. However, they speak to Dr McKay's gaining of insight into what had caused his serious lapse of judgment and Dr McKay being inherently a good person. They also spoke about the remorse and shame they believe he feels and their confidence that an incident of that nature would not occur again. 2. We accept the submission made by counsel for Dr McKay that Dr McKay's good character and reputation in the community is also reflected by his voluntary work. In 2015 he founded a not-for-profit organisation, Doctors Assisting in South-Pacific Islands. Through that organization he travels to the Solomon Islands and PNG (COVID permitting) mainly to operate on patients but also to provide education and support for the local health infrastructure. Insight 1. Counsel for Dr McKay asked us to find that Dr McKay's conduct in taking steps to prevent the conduct or anything like it from happening again, the fact he has acknowledged the wrongfulness of his conduct and the deficiencies which caused the egregious errors of judgment, reflect significant insight and demonstrate a substantial rehabilitation. 2. However, we do have some concern about the issue of insight. 3. In cross examination at this Inquiry Dr McKay acknowledged that, in 2018, he knew the importance of informed consent and he understood that he had to be open and honest with a patient after an adverse event. He was then asked why he had said "I pretended to take a photograph" [24] to patient A. He replied that he had not been candid enough to the patient. When he was asked whether he had lied, he said he wasn't clear that he had taken the photographs, he could not recall having used the word "pretended" but he had not been open and truthful to patient A. 4. We are satisfied that, when the conversation took place, Dr McKay knew he had taken the photographs. We consider that his prevarication in admitting to us that he had lied to patient A, does show a pattern of continuing behaviour which is of concern and shows a lack of insight. Impact on patient A 1. We take into account the impact of Dr McKay's conduct on patient A's mental well-being, which we have described earlier in these Reasons. Previous suspension 1. Dr McKay's registration was suspended for seven months after the s 150 hearing in 2019. Counsel for Dr McKay submitted that any additional period of suspension would be punitive and not protective. We do not accept this submission for the following Reasons: 1. The delegates at that s 150 hearing only considered Dr McKay's conduct on 15 November 2018 which is the subject of Complaint One. They did not consider the additional conduct which has been established in Complaints Two and Three. 2. Orders made after a s 150 hearing, often made on an urgent basis, are for a different purpose - to protect the health and safety of the public. Any order we make must serve a number of purposes, as we have set out earlier in these Reasons. General Deterrence 1. In assessing the relevance of the issue of general deterrence we take into account our previous findings as to the seriousness of Dr McKay's conduct. The objective of protective orders is protective and not punitive. Our paramount consideration is the protection of the health and safety of the public. [25] The Order we make must also maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions. 2. We must make clear to other practitioners and patients that conduct such as that which Dr McKay exhibited both in the operating theatre and then by failing to make full and open disclosure to his employer and the patient, will not be tolerated. Protective Order - Outcome 1. Taking these considerations into account, we find that the Order which will protect the health and safety of the public is the three month period of suspension sought by the Health Care Complaints Commission. 2. We note that renewal of Dr McKay's registration will occur automatically on completion of the period of suspension. 3. We cannot see any basis on which to make an Order for either of the conditions on Dr McKay's registration sought by the Health Care Complaints Commission. Costs 1. Counsel for Dr McKay did not oppose the application by the Health Care Complaints Commission for him to pay its costs. Orders 1. We make the following Orders: 1. Pursuant to s 149C of the Health Practitioner Regulation National Law (NSW), Dr McKay's registration is suspended for three months. 2. Dr McKay is to pay the costs of the Health Care Complaints Commission pursuant to Clause 13, Schedule 5D of the Health Practitioner Regulation National Law, as agreed or assessed. Attachment Application for Disciplinary Findings and Order BACKGROUND TO ALL COMPLAINTS The practitioner completed a Bachelor of Medicine at the University of Newcastle in 2000 and completed a Fellowship of General Surgery with the Royal Australian College of Surgeons in 2008. The practitioner specialises in colorectal surgery. On 15 November 2018, the practitioner performed a colonoscopy on Patient A at The Mater Private Hospital in North Sydney with practitioner, Dr Hill, an anaesthetist ('the procedure'). Patient A was a 37 year old man who had suffered from rectal bleeding and, as was discovered during the examination, was also suffering from a large rectal mass. COMPLAINT ONE The Health Care Complaints Commission complains that the practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(I) of the National Law in that the practitioner has:- i. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. PARTICULARS OF COMPLAINT ONE 1. During the procedure on 15 November 2018, the practitioner inappropriately invited Dr Hill to conduct a digital rectal examination of Patient A: 1. whilst Patient A was under anaesthesia and without his knowledge or proper informed consent; 2. without a valid clinical reason; 3. and took a non-clinical photograph of Patient A with his personal mobile phone, recording the examination performed by Dr Hill. COMPLAINT TWO The Health Care Complaints Commission complains that the practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(I) of the National Law in that the practitioner has:- i. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. PARTICULARS OF COMPLAINT TWO 1. The practitioner provided false and/or misleading information during the hospital investigation into the 15 November 2018 procedure, when he denied that he had taken a photo of Dr Hill conducting a digital rectal examination of Patient A:- (a) On 30 November 2018 in written correspondence to the hospital; (b) On 20 December 2018 in email correspondence to Ms Janine Loader, CEO of the Mater Hospital; (c) (not pressed). 2. On 1 February 2019, the practitioner failed to adequately disclose to Patient A the incident which occurred during the 15 November 2018 procedure when the practitioner stated words to the effect of "I pretended to take a photograph" when discussing the incident with Patient A. COMPLAINT THREE The Health Care Complaints Commission complains that the practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(I) of the National Law in that the practitioner has:- i. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. PARTICULARS OF COMPLAINT THREE 1. On 1 February 2019, the practitioner, during a telephone conversation with Patient A, stated words to the effect of "do you want Dr Hill's number so you can tell him you're not going to press charges?" when discussing the incident which occurred on 15 November 2018 with Patient A. COMPLAINT FOUR The Health Care Complaints Commission complains that the practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. PARTICULARS OF COMPLAINT FOUR 1. The particulars of Complaint 1 and Complaint 2 and Complaint 3 are repeated and relied upon individually and cumulatively. ********** Endnotes 1. Complaint One Particular 1 (a) 2. Complaint One Particular 1 (b) 3. Complaint One Particular 1 (c) 4. National Law, 319B (1)(l) 5. Complaint Three Particular 1 6. National Law, s139E 7. Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at [638] 8. [2017] NSWCA 186 at [19 – 20] 9. Dr Adusumilli report dated 9 December 2019 10. Code of Conduct at 1.4 11. [2022] NSWCATOD 36 at [258] 12. [2021] NSWCATOD 27 at [65] 13. [2019] NSWCATOD 25 at [72] 14. Briginshaw v Briginshaw (1938) 60 CLR 336. 15. Parker v Comptroller of Customs (2009) 83 ALJR 494 16. R v Byrne (1995) 193 CLR 501 at 514-515 17. Health Care Complaints Commission v Sare [2018] NSWCATOD 190 at [30]-[31] 18. National Law, s149C 19. National Law, s149B 20. National Law, s149A 21. Clyne v NSW Bar Association (1960) 104 CLR 186; HCCC v Litchfield (1997) 41 NSWLR 630) 22. Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91] 23. Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]. 24. Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] 25. Complaint Two Particular 2 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 29 August 2022 - Orders: the words "from the date of these orders" added to Order 2. 29 August 2022 - Orders: the words "from the date of these orders" added to Order 1. 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: 29 August 2022