New South Wales Medical Tribunal CITATION : Health Care Complaints Commission v Dr Timothy Tristan Tang-Tat Wong [2010] NSWMT 21 TRIBUNAL: Medical Tribunal PARTIES : Health Care Complaints Commission (Complainant) Dr Timothy Tristan Tang-Tat Wong (Respondent) FILE NUMBER(S) : 40033 of 2009 CORAM: Backman J - Brown, Dr J - Yeo, Dr G - Gleeson, Dr M CATCHWORDS: Unsatisfactory professional conduct - professional misconduct - vitiation of consent to a medical examination - deception Crimes Act 1990 LEGISLATION CITED: Health Care Complaints Act 1993 Medical Practice Act 1992 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Lindsay v Health Care Complaints Commission [2010] NSWCA 194; CASES CITED: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others (1992) 110 ALR 449; The King v Williams (1923) 1 KB 340; The Queen v Flattery (1876-77) 2 QBD 410 DATES OF HEARING: 26 July 2010 27 July 2010 DATE OF JUDGMENT: 17 December 2010 Ms S McNaughton, of counsel (Complainant) LEGAL REPRESENTATIVES: Health Care Complaints Commission Mr M Lynch, of counsel (Respondent) Avant Law Pty Ltd ORDERS: Not apply for re-registration for two years; Prohibition order under s 64(2A) made JUDGMENT: - 11 - MEDICAL TRIBUNAL OF NEW SOUTH WALES DEPUTY CHAIRPERSON: BACKMAN J Members: DR J BROWN DR G YEO DR M GLEESON, OAM Friday, 17 December 2010 Matter No MT 40033 of 2009 Health Care Complaints Commission v Dr Timothy Tristan Tang-Tat Wong Complaint under sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 51(1) of the Medical Practice Act 1992 DECISION [2010] NSWMT 21 1 These proceedings are constituted by a Notice of Complaint brought against the respondent, Dr Timothy Tristan Tang-Tat Wong (Dr Wong), by the complainant, the Health Care Complaints Commission (the HCCC). The complaint alleges that Dr Wong: Has been guilty of unsatisfactory professional conduct within the meaning of section 36 of the Act and/or professional misconduct within the meaning of section 37 of the Act in that he has: i) demonstrated that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and/or ii) contravened a provision of the Medical Practice Regulation 2003 and/or iii) has been guilty of improper and unethical conduct relating to the practice of medicine. 2 The complaint is further particularised in two parts. The first part is disputed by Dr Wong. The second part is admitted. The particulars are set out in full below: (1) On 10 April 2008 during a professional consultation with a female patient, Patient A, at Ryde Clinic, Ryde, NSW the practitioner: a) performed an examination of Patient A's genital area without her consent; b) performed an examination of Patient A's genital area without providing a full and clear explanation of the procedure; c) palpated Patient A's vulva without her consent; d) touched and pushed on Patient A's clitoris without her consent; e) palpated Patient A's vulva without proper and sufficient clinical indications for doing so; f) touched and pushed on Patient A's clitoris without proper and sufficient clinical indications for doing so; g) inappropriately touched (including pushed) Patient A's clitoris; h) performed a vaginal examination on Patient A without her consent; i) performed a vaginal examination on Patient A without providing a full and clear explanation of the procedure; j) failed to order, organise or undertake sufficient or adequate tests to investigate Patient A's presenting signs and symptoms; k) performed a breast examination on Patient A without her consent; l) performed a breast examination on Patient A without proper and sufficient clinical indications for doing so; m) performed a breast examination on Patient A without providing a full and clear explanation of the procedure; n) performed a breast examination on Patient A in an inappropriate manner; and o) inappropriately touched Patient A repeatedly upon her nipples. (2) On 10 April 2008 the practitioner failed to make a full medical record of his examination of Patient A contrary to Schedule 2 of the Medical Practice Regulation 2003. 3 Dr Wong's name no longer appears on the Register of Medical Practitioners (NSW Medical Board), following his request on 1 April 2010 that his name be removed from the Register. His current registration status is "not registered". 4 The HCCC seeks protective orders that Dr Wong not be re-registered for a period of at least two years pursuant to s 64(2) of the Medical Practice Act 1992 (the Act). 5 Before such an order may be made, however, the Tribunal must first be satisfied, in the event it finds upon the complaint against Dr Wong, that he is guilty of professional misconduct: s 64(1)(b) and s 64(2) of the Act. 6 Under s 64(1)(b) of the Act, the Tribunal has power to direct that a person be de-registered if it is satisfied, when it finds on a complaint about the person, that the person is guilty of professional misconduct. Under s 64(2) an order that a person be de-registered is deemed to be an order that the person not be re-registered, if that person has already ceased to be registered. Under s 64(3) an order under s 64 may also provide that an application for review of an order under Division 3 of Part 6 of the Act may not be made, "until after a specified time". Division 3 of Part 6 concerns a person's right of review of orders, including orders of the Tribunal that the person not be re-registered (s 92(1)(b)). An appropriate review body for the purposes of Division 3 of Part 6 may, after conducting an inquiry into a person's application for review, do a number of things which include making an order for re-instatement to the Register under s 94(1)(c). Under s 94(4) of the Act, an order for re-instatement made under s 94(1)(c) may also provide that the order not be reviewed until after a specified time. 7 Dr Wong chose not to attend and take part in the proceedings before the Tribunal. He was, however, legally represented throughout the proceedings. In addition, the HCCC included in the bundle of documents tendered during oral hearing, correspondence under the rubric, "Dr Wong's Responses", comprising letters written either by Dr Wong or on his behalf by his legal representatives. Also tendered by Dr Wong, without objection, was a letter dated 25 February 2010 written by his legal representatives. The letter explained: Dr Wong currently works in his own practice, performing pain management and acupuncture. Up until January this year, Dr Wong was working 2 full days per week and was performing some locum work. Since January this year, Dr Wong has now halved his working hours, working two ½ days per week due to his age, 70 years old and his underlying illnesses. Dr Wong suffers from hypertension, cardiac arrhythmia, glucose intolerance and hyperlipidaemia. Dr Wong also has a partially-blocked left coronary artery. The current proceedings have been the cause of significant stress for Dr Wong, accentuating his cardiac condition and causing him to suffer depression. As stress causes Dr Wong's cardiac rhythm to become faster and irregular, he requires additional medication to manage his condition. I attach a copy of a letter from Dr David Waugh, Dr Wong's treating physician. Dr Wong is currently in the process of selling his practice, which he hopes will take place in the near future. Dr Wong will retire completely from the practice of medicine and remove his name from the Register of Medical Practitioners by 1 April 2010. Dr Wong also plans to cease performing acupuncture by 1 April 2010. 8 A further letter dated 1 July 2010 written on Dr Wong's behalf by his legal representatives informed the Tribunal that Dr Wong ceased to practise medicine on 1 April 2010 following the removal of his name from the Register. The letter also contained an admission in writing to particular 2 of the complaint: see s 60 and s 159 of the Act. The letter also sought to explain Dr Wong's reasons for not attending and taking part in the hearing of the complaint brought against him. His explanation is set out in the following paragraph of the letter: While not intending to show any disrespect to the members of the Tribunal, Mr Wong has decided not to attend and take part in the hearing. Mr Wong has requested that his legal representatives attend the hearing on his behalf to test the evidence presented against him. Mr Wong has decided not to attend court to give evidence after carefully considering the impact of the stress of his attendance on his health. The evidence 9 On 10 April 2008, Patient A attended the Ryde Clinic for the purpose of being treated for what she believed was a urinary tract infection (UTI). She had made an appointment to see the respondent at 9am. She had been to the Ryde Clinic on two previous occasions but this was the first time that she had encountered Dr Wong. 10 Patient A's account of what occurred during her encounter with Dr Wong was set out in her statement as follows: [7.] I expected him to take a urine sample as I had had UTIs before. He said, no this is not the test and he said to me that I thought I might have toxic shock. He had asked me about a recent period and whether I used tampons. I said yes but I have had a UTI before and he said no it might be toxic shock and more serious. We almost argued about it but I felt worried that it might be more serious so I agreed to the test for toxic shock. [8.] I said to him I am due for a pap smear now would you be able to do that at the same time as you do the test for toxic shock and he said no, that would have to be a separate test I can't do both at the same time. [9.] At first I lay on the bed - with my knees up with no drape over me at all. He then had me lie down. He put a glove on his right hand but not his left and he used his ungloved left hand to push around on my abdomen. [10.] He then put a sheet on me and started to touch me in the vaginal area. I am not sure whether he was touching me in the vaginal area with the gloved or ungloved hand. He was touching all around me and pushed on my clitoris. He asked me does this hurt, I said it does not hurt but he repeated this and I told him again firmly and then again through clenched teeth that it did not hurt and then he stopped. [11.] The doctor then picked up a utensil - the one used when doing pap smears - which is plastic and he had me open it. He said he did not want to touch it. I assumed at the time that this was because he only had one glove on. I thought what's the difference as I didn't have any gloves on. He then lubricated it and inserted it. He then took a swab and put in a little container. He then removed the instrument from my vagina, he was completely silent and then opened another instrument and inserted it. This time there was no lubricant on the instrument, it caught on my vagina and he just pushed it in. And then there was a long pause while he had his head down, I didn't know what he was doing. This took at least ten or fifteen seconds. He said nothing. At that point I just wanted to get it over with. [12.] He said nothing when he removed the instrument. I then got dressed. He had a curtain by the examination table but he never drew it to give me privacy. I then sat down. [13.] He typed on the computer at his desk and then he said, do your breasts hurt. I said no they do not quite firmly and he said are you sure? And I said yes they do not hurt. He said, I want to check anyway and then he got up. I remained sitting and he bent and bent his knees and put his hand up underneath my jumper and bra. He asked me if I had regular breast examinations and I said, yes I do. And that is how I know that he was doing it wrong. Both my arms were down, my bra was still on, I was sitting up, his palms were not flat, his hands and fingers were groping up underneath my bra, he touched my nipples multiple times. He asked me does this hurt? I said quite loudly, they don't hurt. He said, are you sure and I said quite loudly and firmly yes I am sure. ]14.] He then asked me for a urine sample. He handed me the little tub and told me to go to the bathroom. And I said, "Oh you'd like a urine sample now? And he said yes that's part of the test. So I went to the bathroom and gave him the sample. [15.] I went back into the surgery and picked up a pen and I wrote my name on the container. While I was doing that the doctor stood up and turned up the air conditioning to make the room cooler. He looked very flushed, red and he said, Gee it's very warm isn't it? I remember the day was very cold, I was wearing a big jumper. The doctor then gave me a bag in which I put the container and he told me to take the container out to the receptionist. He gave me a prescription for antibiotics for the urinary tract infection. [16.] Before I left he said we need to do this test again in one week to make sure that everything was OK. I didn't say anything but I was thinking to myself there's no way that I will be coming back. I then went from his surgery into the reception area and handed over the container. [17.] I didn't speak to the receptionist about what had happened, just handed over the Medicare form and the urine sample and left. I walked to my car, the clinic is near a school and I remember that by the time I left the clinic the lollipop lady who helps the kids cross the road wasn't there anymore so I think this would have been a while after 9.30am. I sat in the car for a few seconds. I was very shaky. I thought I felt very upset about what happened I knew it was all wrong. I rang my husband Brant and told him what had happened. He was very angry he said we've got to do something about this. [18.] I drove home which is just up the road and hid in my house. 11 Patient A refused to speak to Dr Wong following requests via the telephone from the receptionist at the clinic. During the last telephone conversation Patient A claims that the receptionist informed her that, "the doctor said its urgent". Patient A said that these words caused her to worry even though she felt completely healthy after taking the course of antibiotics. She asked her husband to telephone the clinic on her behalf. She said the receptionist refused to put him through to Dr Wong. A further attempt by her husband to get test results from another doctor at the clinic (Dr Neilson) proved unsuccessful. According to Patient A, Neilson informed her husband that the results were not in her file on the computer. Patient A formed the view that if the results were not recorded on the computer then there was no reason for urgency. 12 Dr Wong, in a statement, provided a different account of Patient A's visit on 10 April 2008. His account is set out in full below: I first saw this lady, [Patient A] on 10 April 2008, when she complained of discomfort in her lower abdomen with micturation (sic) and frequency of micturation (sic) for several days. She brought a bottle of urine in with her. On my questioning, she said that there was some vaginal discharge. I asked her permission to examine her abdomen, as there could be infection in other pelvic organs as well. She agreed to the examination. I detected some tenderness and guarding in the lower abdomen on palpation, on both sides of her bladder over the iliac region and her bladder. I also palpated her groins for enlarged lymph nodes, but found none. I explained to her that there might be pelvic inflammation, especially if she had vaginal discharge. I suggested that in order to get to the bottom of it, we would have to do a bimanual vaginal examination and a high vaginal swab. She gave me permission and went behind the curtain to undress, after I gave her a sheet to cover herself. In the meantime, I gloved my right hand and applied lubricant KY jelly on the gloved fingers ready for the vaginal examination. When she had undressed with her pants off, I proceeded to do a bimanual vaginal examination, after the right gloved hand was used to apply the lubricant on the outside of the vagina. The index and middle fingers were then inserted and pushed the uterus up and sideways to elicit any local tenderness and the left hand at the lower abdomen to keep the uterus steady and to feel the size of the uterus. The right gloved thumb might have touched the clitoris accidentally, as my fingers are short and I have to push fairly deep, in order to move the uterus sideways and up and down. I asked her if there was any tenderness when I moved the uterus sideways and up and down, to which she replied, yes. This is a sign of inflammation of the uterus and fallopian tubes, as I explained to her. I then proceeded to tell her that the speculum will be inserted into the vagina, in order to view the inside and take a high vaginal swab for testing. She agreed. However, my gloved had (sic) was covered in lubricant and I did not want to contaminate the speculum and the glove, hence I passed the speculum with my left hand to her to ask if she wouldn't mind opening the plastic wrapping of the speculum with her hands. I took the unwrapped speculum and inserted it into the vagina and applying more lubricant to the speculum. She expressed some tenderness when the speculum touched the cervix and the deep end of the vagina. I put the light on and saw that there were copious amounts of a light yellow vaginal discharge, at the region of the deep end of the vagina and cervix. I then took the cotton swab with my left hand and passed it to [Patient A] and asked her if she could open the package, as it was wrapped in plastic and I did not want to contaminate my right hand, which had to hold the speculum in place in the vagina. I then took a swab deep inside the vaginal canal and placed it in the sterile tubing that [Patient A] was holding, to be sent away for analysis with the urine. I then removed the speculum, replaced the sheet on [Patient A's] lap and asked her if she had had her breasts checked for lumps or tenderness recently. She replied that they had not been checked for a long time. I asked her if she wanted me to examine them, in order to exclude breast lumps and other pathology which might relate to her present condition, e.g. secondary cancer and hormonal changes. She said yes and pulled her bra up to the examined. As is my usual practice, the flats of four fingers were used to press down on the four quarters of the breast to check for lumps. I also checked her armpits for enlarged lymph nodes. The result was negative. I asked [Patient A] to get dressed and I explained to her that the provisional diagnosis was Urinary Tract Infection and/or Pelvic Inflammatory Disease. I prescribed a strong antibiotic, Augmenton Duo, to be taken in the meantime, until the result of the test came back in a few days. I asked her to return in a week to confirm the diagnosis, with the possibility of further testing, to ensure all the bacteria were killed and if the correct antibiotics had been prescribed, or anything else needed to be done, for example, Chlamydia and other infections needed to be excluded. The urine and the vaginal swab were sent to Douglass Hanley Moire Pathology for testing. The test results showed that in the urine there were numerous pus cells, red cells, epithelial cells and protein. The vaginal swab showed gram positive and negative bacilli, as well as polymorphs. No significant growth was obtained in either sample. The pathologist commented that the possible cause of pyria, without significant growth included atypical infection, e.g. Chlamydia, mycobacteria, renal disease. If epithelia cells are present with Pyuria, a non-urinary tract (genital) origin needed to be considered. This report justifies the recall and further investigation of the patient and her sexual partner for Chlamydia and other sexually transmitted diseases or renal diseases. Hence, I instructed the receptionist to phone [Patient A] on three occasions to discuss the results. 13 The two accounts, obviously, cannot stand together. The respective versions of what took place during Dr Wong's examination are in direct conflict on those key matters which form the subject of the allegations in Particular 1 of the complaint brought against Dr Wong by the HCCC. The Tribunal, therefore, must decide which version is the more credible. 14 Patient A gave evidence before the Tribunal and was subjected to a rigorous cross-examination. On all key matters her account in cross-examination was consistent with the account set out in her written statement. It is important for the purpose of the present exercise to set out in some detail Patient A's responses in cross-examination to those matters in Dr Wong's statement which contradict her version of events. 15 Patient A denied bringing a urine specimen with her when she saw Dr Wong, contrary to Dr Wong's statement which records that, "She brought a bottle of urine in with her". She said that she did not record in her statement every word that was exchanged between her and Dr Wong during the examination but that her written account, "would have been very close. I was recording what happened rather than worrying about word for word". 16 She denied that Dr Wong had given her a sheet at the commencement of the examination when he invited her to get undressed. She confirmed, consistent with her written account, that a sheet was not made available until later during the course of the examination. 17 During cross-examination Patient A agreed, in response to a question, that she had said to Dr Wong at an early stage, "I don't want to undergo such an examination". No such statement appears in her written account. When this proposition was put to him the following exchange took place: Q. If you will allow me to finish the question please. You have never said until now in any of your statements that you didn't want to undergo the test that he was proposing, have you? A. What I said was that we almost argued about it, so that statement implies that there were other words said. Q. What were the other words? A. What I just told you, that I didn't want to undergo that test and I've never had the test before for a urinary tract infection and isn't it just a urine test? Q. You went to the doctor to get the doctor's advice about what you were suffering from, didn't you? A. Yes. Q. You didn't assume you knew everything about the condition you might have been suffering from? A. I did assume I knew what it was because I've had it before but, yes, I was there to consult with the doctor, which is why I let him do the test to start with. Q. And you never said to him, "I don't want to have the test", did you? A. Yes, I did, I've already said that I told him that. Q. When was that? A. It was after I'd initially said, "This is what I have, a urinary tract infection" and, "Do I give you a urine sample?" and he said, "No, that is not the test. You may have something more serious, you may have toxic shock". He asked me about recent periods, had I used tampons, I said "yes". It was after there when I said that we almost argued about it; it was at that point. Q. What do you mean by, "We almost argued about it?" A. It became a slightly heated discussion. Q. Well, if you'd told the doctor in plain terms that you didn't want to do the test, that would be a very significant matter, wouldn't it? A. Yes. Q. One that you would have included in your complaint form or in your statement; do you agree? A. Not necessarily. Q. There's nothing in your statement, is there, that suggests at any time you told Dr Wong that you didn't want to do the test he was proposing? A. He convinced me that it was necessary. 18 Patient A said in cross-examination that Dr Wong unwrapped a second speculum. She also said that he had referred to toxic shock syndrome before the examination commenced which had convinced her, "to do the test". She also denied the proposition put to her that, "Dr Wong did not touch your clitoris numerous times". She said that he did not brush her clitoris but pushed it three or four times. All of these matters are consistent with Patient A's written account and contradict Dr Wong's written account. 19 Patient A was also questioned at length about her version concerning Dr Wong's examination of her breasts. She denied that he had suggested she undergo a breast examination or that he had asked her whether her breasts had been previously checked for lumps. She said Dr Wong did inquire whether she had regular breast examinations to which she had responded in the affirmative. She said she did not agree to a breast examination. She denied that she had pulled her bra up in order for the examination to take place. She denied that Dr Wong had used the flats of his fingers to examine her breasts. Instead, she described his actions as "he held it like a ball and squeezed". She also said that he had repeatedly touched her on her nipples. She denied that Dr Wong had referred at any stage during the examination to Chlamydia. 20 During oral hearing Patient A was also questioned by the Tribunal. Her responses to some of those questions are extracted below: · Dr Wong did not discuss sexually transmitted diseases with her, nor ask her about sexual relationship issues. He did not ask her when was the last time she had sex prior to her symptoms occurring; · Dr Wong did not ask her if she had a fever, chills or shivering; · Dr Wong did not ask her if there was an itch in the genital area; · Dr Wong did not take her temperature or blood pressure; · Dr Wong did not feel under her armpits during the breast examination. 21 The Tribunal has carefully evaluated the two competing versions as to what took place between Patient A and Dr Wong during the course of Patient A's examination. We have had the opportunity to assess Patient A during her oral evidence. As we have previously indicated her oral evidence is consistent with her written account of what took place during the examination. We do not consider that there is any inconsistency between Patient A's more general account ("We almost argued about it ...") of the discussion with Dr Wong about whether she might have toxic shock and the more specific account given by her during cross-examination that she told Dr Wong she did not want to undergo such an examination. We accept Patient A's explanation during cross-examination that she was more concerned when making her statement with recording what happened rather than providing a "word for word" account. In addition, as Patient A sought to point out, her statement, expressed generally, about the discussion on toxic shock (and the need to be tested) is not inconsistent with, and in fact is indicative of a conflict of views about the merits of such a test, and whether it should be performed. 22 It is the Tribunal's view, having observed Patient A giving evidence, that in addition to accepting the consistency of her written and oral accounts, Patient A was a convincing and reliable witness. Patient A's account we accept therefore in its entirety as a credible one. In contrast, the Tribunal has not had the benefit of hearing and assessing Dr Wong's untested version of events. Our evaluation of his account is necessarily confined to his written statement. Because we accept Patient A's account as credible, and because Dr Wong's written statement contradicts that account, it follows that where Patient A's account is in conflict with Dr Wong's account that Patient A's account will be preferred. We intend to approach the sub-particulars of Particular 1 on the basis that where there is conflict between the two versions, Patient A's version will be preferred. 23 Many of the sub-particulars of Particular 1 substantially overlap and where this occurs they will be dealt with together. Sub-particulars 1(a), (c), (d), (h) and (k) 24 Sub-particulars 1(a), (c), (d) and (h) rely on a lack of consent by Patient A to discrete aspects of her examination which may be generally described as an internal genital (vaginal) and external genital (vulva) examination. Sub-particular (k) is based on a lack of consent to the breast examination. According to the HCCC, the alleged consent is vitiated because it was obtained by deception. The deception which convinced Patient A to consent to the examination was informing her she might have toxic shock when there was no supporting evidence for a diagnosis or provisional diagnosis of toxic shock such as fever or hypotension. Some authorities were relied upon by the HCCC in support of the submission, notably two old English authorities: The Queen v Flattery (1876-77) 2 QBD 410 and T he King v Williams (1923) 1 KB 340. Both authorities, however, appear to concern vitiation of consent where the consent was obtained by fraud, a somewhat broader concept than deception. In both cases the fraud involved obtaining the consent of young women to undergo medical or surgical procedures which, in reality, involved the young women engaging in sexual intercourse with the accused persons. The HCCC also referred the Tribunal to s 61HA(5)(c) of the Crimes Act 1990. That provision provides that a person who consents to sexual intercourse in the mistaken belief that it is for a medical or hygienic purpose does not "consent" to sexual intercourse. Section 61HA(2) defines consent, "if the person freely and voluntarily agrees to the sexual intercourse". Section 61HA is directed towards the offences in ss 61I, 61J and 61JA, all of which concern sexual assaults where lack of consent is an essential element which must be proved by the prosecution beyond reasonable doubt. In contrast, the Tribunal in the present disciplinary proceedings is dealing with conduct which takes place in the context of a doctor-patient relationship. The nature of that relationship which carries with it attendant duties and responsibilities to be discharged by all medical practitioners was the subject of comment in the Court of Appeal in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638 (per Gleeson CJ, Meagher and Handley JJA): Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe. In this context we would adopt, with respect, the following statement from the dissenting judgment of Priestley JA in Richter v Walton (Court of Appeal, 15 September 1993, unreported) at 8-9: "The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, of which the present seems to me to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards: all this being very much in the public interest." 25 It is within the context referred to in the judgment above that the present complaint falls to be assessed. We adopt and apply the Court of Appeal's comments in the above extract as relevant and applicable to these present proceedings. 26 In closing submissions, counsel for Dr Wong sought to identify four flaws in the HCCC's case that Dr Wong's examination was conducted without Patient A's consent. First, it was contended that contrary to the written submission of the HCCC (Dr Wong told Patient A she had toxic shock) Patient A's evidence was that she was told by Dr Wong she "might have" toxic shock. This matter was quickly attended to by counsel for the HCCC who informed the Tribunal that the written submissions contained a typographical error and should be corrected to read "may have toxic shock". Since the Tribunal heard no further submissions on the matter we consider the discrepancy to be a "distinction without a difference". 27 The second flaw was said to arise on the basis that Patient A's evidence revealed that she had no understanding of toxic shock as a medical condition and it is not logical for a person to allege that she has been deceived because of the possibility of having a condition, the symptoms of which she knows nothing about. 28 As a preliminary observation, it seems to the Tribunal that, contrary to the respondent's submission, if a patient is told she might have a medical condition about which she knows very little and which "might be serious", this could instill sufficient apprehension and persuade the patient to agree to a medical examination. According to Patient A's account, upon being informed by Dr Wong that she might have toxic shock, she said she, "felt worried that it might be more serious so I agreed to the test for toxic shock". This apprehension on Patient A's part that toxic shock, whatever the symptoms might be, was something more serious than a UTI was enough to convince her to submit to the examination. That is the clear effect of her evidence. Moreover, the Tribunal sees nothing illogical or irrational about Patient A's decision to undergo an examination for toxic shock without having an appreciation of the symptoms. It was enough that she was led to believe the condition might be serious. In the context of the special relationship which exists between doctor and patient, Patient A was entitled to trust and rely on Dr Wong's advice and Dr Wong was obliged to conduct himself appropriately in full discharge of his professional obligations. 29 The third flaw relied upon by the respondent was directed to the HCCC's submission that there was no supporting evidence for a diagnosis of toxic shock. According to the respondent, a prudent practitioner does not reach a conclusive diagnosis at the beginning of a consultation but gathers information during the consultation for the purpose of trying to reach a diagnosis, and undertakes necessary tests and enquiries before making a provisional diagnosis. The investigation, enquiries and examination of the patient all take place with a view to identifying a diagnosis. 30 The difficulty the Tribunal faces with the submission is that there is little, or no, evidence of appropriate attention to matters which should have been explored, but were not, during the examination. If Dr Wong's hypothesis that Patient A might have toxic shock had any legitimate basis it must reasonably follow that the examination that took place would be consistent or largely consistent with an examination or inquiry into the symptoms of toxic shock. On the evidence, no such examination took place. 31 According to Dr Margaret Gibbons who provided a review to the HCCC of the material which included Patient A's statement, medical records and Dr Wong's statement, toxic shock is an unlikely diagnosis for urinary frequency and burning if Patient A was not seriously ill or running a high temperature. Patient A had complained to Dr Wong about urinary frequency and burning. She did not mention being seriously ill or having a temperature. Dr Wong did not inquire into those matters. Symptoms of toxic shock, according to Dr Gibbons include fever or hypotension. According to Patient A's responses to questions put to her by the Tribunal, Dr Wong did not ask her if she had a fever, chills or shivering, and he did not take her temperature or blood pressure. Dr Wong therefore did not conduct an examination consistent with an examination for toxic shock. These matters were sufficient for Dr Gibbons to conclude: i) No evidence for toxic shock, such as fever or hypotension have been described by [Patient A] or Dr Wong. Failure to examine the vital signs of the patient suspected of toxic shock syndrome departs significantly from the standard of examination expected of general practitioners and invites my strong criticism. Suggesting 'toxic shock' as a likely diagnosis without supporting evidence, in order to alarm the patient and persuade her to have a vaginal examination departs significantly from the standard of conduct expected of general practitioners and invites my strong criticism. 32 The fourth flaw identified by the respondent was also directed toward the HCCC submission that there was no supporting evidence for a diagnosis of toxic shock. Dr Gibbons' evidence, according to the respondent, was that toxic shock was an unlikely diagnosis for the symptoms exhibited by Patient A, namely urinary frequency and burning. Given the standard of proof which must be discharged by the HCCC that evidence, it was contended, is not sufficient to sustain a finding that the allegations based on a lack of consent are made out. We do not agree. Patient A's presenting signs and symptoms, together with the evidence, and the conclusion we have drawn from that evidence, of what took place during the examination, as well as the conclusions of Dr Gibbons, enable the Tribunal to be comfortably satisfied that there was no supporting evidence for a diagnosis of toxic shock. 33 The standard of proof, referred to by the respondent, is the ordinary standard of proof required of a party who bears the onus in civil litigation, that is, proof on the balance of probabilities. Moreover, that remains the standard even where the matter to be proved involves criminal conduct or fraud: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others (1992) 110 ALR 449 at 449 per Mason CJ, Brennan, Deane and Gaudron JJ. The majority in Neat Holdings added by way of further explanation (at 450) (formal parts omitted): On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw : The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved … 34 The respondent submitted that it was inherently unlikely that a medical practitioner would deliberately tell a patient who complains of a UTI that she might have a more serious condition in order to legitimise a vaginal examination. Accordingly, no inference of the kind sought to be drawn consistent with the Briginshaw principle is available, namely that that was the real intention or purpose of the examination. 35 Whether something is inherently unlikely or improbable is a matter that can only be assessed by reference to the facts before the Tribunal. Dr Gibbons, for example, had no difficulty in concluding based on Patient A's version that Dr Wong had suggested toxic shock as a likely diagnosis, "in order to alarm the patient and persuade her to have a vaginal examination". 36 The evidence (and the inferences which the Tribunal draws from that evidence) is that Patient A attended Dr Wong's surgery and informed him of her belief that she had a UTI. Dr Wong suggested to her that she might have something more serious, namely toxic shock, which in turn would require an examination for toxic shock. Patient A only agreed to the examination because she was sufficiently alarmed by Dr Wong's representation that she might have something more serious. What emerges clearly from the course of the examination, in the Tribunal's view, is that it was not conducted in a way which was consistent with an examination for toxic shock. Dr Wong made no enquiries as to whether Patient A was unwell or had a temperature. He did not take her temperature or her blood pressure. 37 The examination undertaken by him, based on the evidence of Patient A and the opinions of Dr Gibbons, was in many respects unnecessary and highly inappropriate. Dr Wong, for example, touched and pushed on Patient A's clitoris on three or four occasions. According to Dr Gibbons, this could occur by accident on one occasion, but not on subsequent occasions. Her evidence in cross-examination on this issue was to the following effect: Q. You say at page 2 dealing with the touching of the clitoris that it is possible Dr Wong may have accidentally touched [Patient A's] clitoris once. How is that possible or how would that come about? A. While pushing into the vagina normally the thumb is held right up and out of the way but pushing in this part may come to rest against the pubic bone and may touch the clitoris. I can see it happening accidentally once, the pushing in, the thumb may come down a little bit. Q. Well if it is done accidentally, if it can happen once, it could happen more than once, could it not? A. I would think not. I think as a practitioner if it happened once you would be so conscious of doing it that you would be very, very careful not to do it again accidentally in that examination. Q. Well, it is not impossible that it might happen more than once depending on how long the investigation took and what you were focussing on primarily? A. If you accidentally touch the clitoris as against just the structures above the opening of the vagina I think you would be aware of it and would be - the examination doesn't take very long, a few - 2, 3 minutes maximum I think you would be very aware of not specifically touching the clitoris again. Q. Well, if you were conscious of it? A. Yeah. Q. That may be so, if you weren't conscious that your finger or thumb or the area that you pointed out between the thumb and index finger had come into contact with the clitoris you wouldn't be conscious of avoiding it a second time, would you? A. I think to specifically touch the clitoris you would be aware of it in the conduct of the examination. Q. Because of some reaction on the part of the patient or just your - the expectation of the practitioners - of the physiology or some other reason? A. It may be the reaction of the patient. It may be that your pushing in deeply and you realise that your thumb has ridden up over the clitoris, I think you would be aware of it. 38 Patient A said that Dr Wong touched her, "all around the pubic bone, around the side and soft areas and four times he touched me and pushed on my clitoris". While doing this he asked her a few times whether it hurt. Dr Gibbons, in cross-examination, provided the following insight into the usual method of conducting an examination of the external genitalia: Q. If doctor this was the first occasion when a medical practitioner had conducted an external genital examination, touching the labia, coming into contact with the clitoris, touching the vulva but not inserting a digit into the patient's vagina, if that was the first time the patient had experienced such an examination would you expect the patient to be somewhat shocked and dismayed at that kind of examination unless it was fully explained as to what was going on? A. Normally examination of the external genitalia is visual to start with unless there is a specific problem so if the patient has described an ulcer or a swelling or something of that nature certainly there might be some touching but normally external genitals are examined by looking. Sometimes it is necessary to gently separate the labia and either the patient can be asked to do that herself or it can be explained to the patient exactly what you are doing but there is not generally much palpation of the labia. Q. What about the groin? A. Yes, checking the lymph nodes in the groin is a normal procedure. 39 According to the evidence, Patient A did not complain about ulcers or swelling in the area of the external genitalia and Dr Wong provided no explanation of what he was doing during the examination. Dr Wong did not check Patient A's lymph nodes in the groin area. Based on these matters there was little, if anything, to justify the physical examination that was undertaken. 40 The description provided by Patient A of the breast examination undertaken by Dr Wong indicates that the examination was conducted in a highly irregular and inappropriate manner. Dr Wong did not ask Patient A if he could examine her breasts. She was sitting fully clothed in an upright position when Dr Wong placed his hands underneath her bra and held her breast, "like a ball and squeezed". He also touched her repeatedly on the nipples. According to Dr Gibbons, it was not clinically necessary for Dr Wong to conduct a breast examination and the examination did not follow the normal procedure. In her report, Dr Gibbons concluded: iii) Conducting a breast examination without removing the bra and other outer garments, means that adequate visual inspection and palpation cannot be performed and touching the nipples multiple times without a clinical indication and explanation to the patient departs significantly from the standards of examination, communication and conduct expected of general practitioners and invites my strong criticism. 41 The Tribunal agrees with and endorses Dr Gibbons' conclusions. 42 The central question with regard to the sub-particulars presently under consideration is whether the examination was conducted by Dr Wong without Patient A's consent. As we have earlier remarked, the HCCC alleges that Patient A did not consent to the examination because the consent was obtained by deception. 43 To what did Patient A consent? The answer to that question is that she consented to a legitimate examination for toxic shock. She did not consent to the examination which was conducted in a highly inappropriate manner, unnecessary, and not at all consistent with an examination for toxic shock for reasons which we have sought to explore in some detail. 44 In the Tribunal's view, the evidence clearly establishes to the requisite standard that Dr Wong by a deceptive, or misleading, representation sought to secure Patient A's consent to the examination. He was able to achieve this by informing Patient A that she might have something "more serious" than a UTI thus inducing in her a sufficient state of apprehension to convince her to submit to the examination. In these circumstances, Patient A's "consent" to the examination actually undertaken was no consent at all. Sub-particulars 1(a), (c), (d), (h) and (k) are therefore made out. Sub-particulars 1(b), (i) and (m) 45 Sub-particulars 1(b), (i) and (m) are based on Dr Wong's failure to provide a full and clear explanation of what occurred during the course of the examination. The Tribunal has already explored in some detail the evidence on this issue. According to Patient A's evidence, which we accept, Dr Wong offered little in the way of explanation as to why he was undertaking various procedures during the course of the examination. Dr Wong made no attempt to describe the course of action proposed. He did not give Patient A any information about the symptoms of toxic shock other than informing her in general terms that it was a condition "more serious" than a UTI. The obligation to provide necessary and adequate information to patients is set out in the Code of Professional Conduct, a booklet published by the Medical Board for the benefit of all medical practitioners registered in New South Wales. Section 2.3.1 provides, relevantly: 2.3.1 Successful relationships between doctors and patients depend on trust. To establish and maintain that trust you should: a) listen to patients and respect their views; b) treat patients politely and considerately; c) respect your patients' privacy and dignity; ... f) give patients full information about their condition and treatment, outlining the risks and benefits, and prognosis. You should provide this information to the parent, guardian or person responsible where patients lack the maturity or ability to understand etc; g) give information to patients, parent, guardian or person responsible in a way they can understand; h) wherever possible, check that the patient, parent, guardian or person responsible has understood the information given and the course of action proposed, and that they consent to it, before you provide treatment or investigate a patient's condition; i) respect the right of patients to be fully involved in all decisions about their care; j) respect the right of patients to decline treatment or decline to take part in teaching or research. 46 The Tribunal finds that Dr Wong observed none of these standards when examining Patient A. 47 According to the respondent Patient A did not purport to recall all of the words said by Dr Wong during the course of the examination which might raise doubts about whether she was able to describe accurately what occurred in the examination. The respondent placed reliance for this latter contention on Patient A's evidence when she said she did not know what Dr Wong was doing in the course of the second speculum examination and she did not know whether he was conducting an internal examination. 48 We have already sought to deal with the evidence concerning the accuracy and reliability of Patient A's recollection of the examination. Patient A said that when making her statement she was more concerned with recording what happened rather than providing a "word for word" account. Nevertheless, we regard Patient A's account of what, if any, explanation was provided by her by Dr Wong in relation to the procedure undertaken as clear and unambiguous. She said, for example, that Dr Wong was "completely silent" when conducting the vaginal examination. Not surprisingly, Patient A volunteered in her written account that she did not know what Dr Wong was doing. Patient A's ignorance of the procedure only reinforces the evidence that Dr Wong provided no "full and clear" explanation of the procedure. Based on these matters, and the evidence with which we have already dealt in some detail, the Tribunal finds that sub-particulars 1(b), (i) and (m) are made out to the requisite standard. Sub-particulars 1(e) and (f) 49 Sub-particulars 1(e) and (f) allege that Dr Wong palpated Patient A's vulva and touched and pushed Patient A's clitoris without proper and sufficient clinical indications for doing so. The evidence led in support of these allegations has already been dealt with and needs no repetition. Patient A exhibited no obvious signs or symptoms which would have justified or necessitated the physical examination undertaken by Dr Wong. As we have found, the actual examination conducted was highly inappropriate, involving, in particular, multiple touching and pushing of the clitoris. According to Dr Gibbons, this aspect of the examination was done without proper clinical indication and departed significantly from the standards of communication, examination and conduct expected of general practitioners and invited her strong criticism. The Tribunal agrees with those comments. 50 Sub-particulars 1(e) and (f) are therefore made out to the requisite standard. Sub-particular (g) 51 Sub-particular (g) alleges that Dr Wong inappropriately touched and pushed Patient A's clitoris. We have considered the evidence on this issue in some detail. It requires no repetition. We have already made the finding that Dr Wong's conduct with regard to this aspect of the examination was highly inappropriate. Sub-particular (g) is therefore made out to the requisite standard. Sub-particular (j) 52 Sub-particular (j) alleges that Dr Wong failed to order, organise or undertake sufficient or adequate tests to investigate Patient A's presenting signs and symptoms. 53 Dr Gibbons, in her report, provided the following commentary which is relevant to this sub-particular: Symptoms of urinary tract infection such as pelvic pain and burning on micturition may also occur in vaginal infections such as Chlamydia and Herpes, and it is normal clinical practice to take a full history, including current symptoms, past episodes and possible risk factors for sexually transmitted infections or other vaginal infections, and to examine the abdomen, external genitalia and vagina. Dr Wong states that on questioning [Patient A] said she had some vaginal discharge, and on examination had pain on movement of her uterus, suggestive of pelvic infection (also consistent with bladder infection), but there is no record of this in his notes provided to me, nor of any other history or examination. However, the tests that Dr Wong ordered are inadequate to exclude pelvic infection as he has not performed a test for Chlamydia, which can give the symptoms complained of by [Patient A], and the signs he has stated he found. It is very important to exclude Chlamydia as it requires specific treatment not normally given for a urinary tract infection, and if untreated it can lead to pelvic inflammatory disease with tubal occlusion. Chlamydia is now checked by Nuclear Amplification Testing (NAT), performed on an endocervical swab or on first pass urine. Chlamydia cannot be detected on a high vaginal swab (HVS). 54 In cross-examination, Dr Gibbons was asked to assume the accuracy of Dr Wong's account of the examination and based on that account whether she remained critical of his treatment. She responded: A. Yes, I have been critical of his treatment. This relates particularly to the fact that he says that he thought the patient potentially had pelvic infection and the commonest cause of pelvic infection in young women in Australia is Chlamydia yet he did no testing for Chlamydia nor did he provide treatment for Chlamydia. 55 Dr Gibbons did acknowledge that Dr Wong had attempted to contact Patient A in order to arrange tests, however, she said this did not eliminate her criticism but merely reduced it. 56 The evidence which the Tribunal accepts on this issue is that Dr Wong failed to undertake a number of basic tests with regard to Patient A's presenting signs and symptoms. This evidence has been explored in detail. It includes Dr Wong's failure to make basic enquiries as to Patient A's state of health or whether she had a fever, chills or shivering. He also failed to take her temperature and blood pressure. Dr Wong, during the examination, did not advert to Chlamydia as a possible diagnosis, and he did no testing for the condition during the examination. This was so notwithstanding that Patient A's presenting symptoms could also occur in vaginal infections such as Chlamydia, as Dr Gibbons pointed out in her report. 57 The Tribunal finds therefore that sub-particular (j) has been made out to the requisite standard. Sub-particulars (l), (n) and (o) 58 Sub-particulars (l), (n) and (o) relate to the breast examination performed by Dr Wong. The evidence in relation to this aspect of the examination has also been explored in detail and requires no repetition. According to Dr Gibbons in her report on this matter: [Patient A] describes a breast examination which does not seem clinically necessary. The examination described does not follow normal procedure - she was not asked to lift her top and bra for visual inspection of her breasts and it is very difficult to systematically palpate breasts with a bra still on. Breasts can be examined with the patient sitting or lying. ... iii) Conducting a breast examination without removing the bra and other outer garments, means that adequate visual inspection and palpation cannot be performed and touching the nipples multiple times without a clinical indication and explanation to the patient departs significantly from the standards of examination, communication and conduct expected of general practitioners and invites my strong criticism. 59 The respondent sought to counter these allegations with the submission that the breast examination, if it formed part of a "well-woman" check was justified. The difficulty with the submission is that there is simply no evidence that Dr Wong's examination of Patient A's breasts was conducted as part of a "well-woman" check. Even if it purported to be part of a "well-woman" check it was conducted in an entirely inappropriate manner. According to Patient A, Dr Wong squeezed her breast like a ball and repeatedly touched her nipples. 60 All of these matters, which we find have been established on the evidence, prove to the requisite standard that Dr Wong performed the breast examination without providing a "full and clear" explanation of the procedure and in an inappropriate manner, during which he repeatedly touched Patient A on the nipples. Sub-particulars (l), (n) and (o) are therefore made out to the requisite standard. Protective order and prohibition order 61 In addition to the order sought by the HCCC that Dr Wong not be re-registered for a period of two years, the HCCC also sought a prohibition order prohibiting Dr Wong from providing "health services" as an acupuncturist for a specified period up to 1 July 2012. Such an order is available under s 64(2A) of the Act if an order has been made under s 64 and, the Tribunal is satisfied that the person poses a substantial risk to the health of members of the public. Under the Act, "health service" has the meaning given to it by the Health Care Complaints Act 1993 (HCC Act). Under s 4(j) of the HCC Act, health service includes services provided by acupuncturists. 62 The respondent did not object to the Tribunal making a prohibition order in the terms proposed by the HCCC. 63 It is the Tribunal's view that the conduct of Dr Wong during his examination of Patient A was serious misconduct falling significantly below the standard reasonably expected of a medical practitioner. The evidence establishes several instances where Dr Wong misconducted himself during the examination: (i) he persuaded Patient A to undergo an examination of her vagina and vulva by misrepresenting to her that she might have toxic shock, a condition he said was more serious than the urinary tract infection about which she had initially complained; (ii) during the examination he touched and pushed on Patient A's clitoris on three or four occasions without any proper or sufficient clinical indication for doing so and in an inappropriate manner; (iii) he conducted an examination of Patient A's breasts in an inappropriate manner, without Patient A's consent, and without proper and sufficient clinical indications for so doing, and without providing an explanation of the procedure; (iv) he failed to order, organise or undertake sufficient or adequate tests, including a test for Chlamydia, to investigate Patient A's presenting signs and symptoms; (v) he failed to make a full medical record of Patient A's examination which constitutes conduct falling within s 36(1)(b) of the Act by reason of a contravention of the Medical Practice Regulation 2003 (a regulation made under the Act). 64 These several instances of conduct each constitute instances of unsatisfactory professional conduct under s 36(1)(a) and (b) of the Act. Cumulatively, they fall within the definition of professional misconduct under s 37 of the Act representing conduct of a sufficiently serious nature to justify the respondent's name being removed from the Register: see Lindsay v Health Care Complaints Commission [2010] NSWCA 194 at [160], [161] per Sackville AJA. 65 Accordingly, the Tribunal proposes to accede to the submission of the HCCC that the respondent not be re-registered for a period of two years. The respondent's conduct is also sufficiently serious to satisfy the Tribunal under s 64(2A) of the Act that the respondent poses a substantial risk to the health of members of the public such that a prohibition order should be made preventing the respondent from providing a health service, namely acupuncture, from the date of this Decision until 1 July 2012. Orders 66 The Tribunal makes the following orders: (1) The respondent who is currently de-registered may not apply for re-registration for a period of two years from the date of this Decision. (2) The respondent is prohibited under s 64(2A) of the Medical Practice Act 1992 from providing health services namely, the services provided by acupuncturists, from the date of this Decision until 1 July 2012. (3) The respondent is to pay the HCCC's costs of these proceedings. ___________________ 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.