HCCC v Dr Piyush JOGIA [2009] NSWMT 7

New South Wales Medical Tribunal

CITATION : HCCC v Dr Piyush JOGIA [2009] NSWMT 7 TRIBUNAL: Medical Tribunal PARTIES : Health Care Complaints Commission Dr Piyush JOGIA FILE NUMBER(S) : 4022/08 of 2009 CORAM: Murrell, SC DCJ - Grimes, Dr D - Hely, Dr J - Glass, Assoc Prof A CATCHWORDS: Professional Misconduct - Practitioner's name removed from Register LEGISLATION CITED: Medical Practice Act 1992 CASES CITED: Briginshaw v Briginshaw [1938] 60 CLR 336 DATES OF HEARING: 2-9 November 2009 DATE OF JUDGMENT: 4 December 2009 Mr Strickland SC of Counsel for the Complainant LEGAL REPRESENTATIVES: Mr Lynch of Counsel for the Respondent ORDERS:

JUDGMENT:

The Complaint 1 From August to December 2006, Dr Jogia was the patient's general practitioner. The patient alleged that, on 4 December 2006, the practitioner told her that she needed weekly treatment for "vaginal spasms". On 12 December 2006 when she attended for the purpose of undergoing the treatment, the practitioner inappropriately rubbed her genital area using two fingers in a circular motion (T1:53). He said "Don't worry if you find it arousing".

2 The Health Care Complaints Commission (HCCC) complained that the practitioner was guilty of professional misconduct. The practitioner denied the conduct. He agreed that conduct such as that alleged would amount to professional misconduct.

3 The Medical Tribunal exercises its jurisdiction for the paramount purpose of protecting the health and safety of the public: s 2A (3) of the Medical Practice Act 1992. Related purposes are to deter misconduct by other practitioners and to uphold the standards of the medical profession. Any finding of professional misconduct is extremely serious. Consequently, the Tribunal will make such a finding only if an allegation is clearly made out and the Tribunal feels comfortably satisfied that it is true: Briginshaw v Briginshaw [1938] 60 CLR 336. The Patient's Background 4 The practitioner placed considerable reliance on the patient's unstable history and psychiatric diagnosis.