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- Unreported Judgment
Medical Board of Australia v Rall  QCAT 228
Medical Board of Australia
Occupational regulation matters
On the papers
Hon JB Thomas, Judicial Member
Dr David Evans
Dr Heather Parker OAM
Mr Brad Taylor
12 April 2016
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – alleged digital rape by doctor of female patients during examinations – whether established to required standard of proof – alternative allegations of substandard practice in conduct of those examinations – doctor ceasing practice before determination of proceedings – finding of unsatisfactory professional conduct – level of sanction appropriate
Health Practitioner Regulation National Law Act 2009 (Qld) (Schedule) s 289
Health Practitioner’s (Disciplinary Proceedings) Act 1999 (Qld) ss 9, 124, 126, 243(2)(b)(ii), 243(2)(b)(v)
Adamson v Queensland Law Society incorporated  1 Qd R 498
Briginshaw v Briginshaw (1938) 60 CLR 356
Neat Holdings v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Ooi v Medical Board of Queensland (1997) 2 Qd R 176
Rejfek v McElroy (1965) 112 CLR 517
APPEARANCES & REPRESENTATIONS:
McInnes Wilson Lawyers for the applicant Board
In person by written submissions
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).
REASONS FOR DECISION
Jurisdiction and Legal Provisions
- This is a disciplinary proceeding against a medical practitioner.
- The Health Practitioner Regulation National Law Act 2009 (Qld) (“the National Law”) commenced operation on 1 July 2010.
- The Medical Board had by that time already started dealing with two notifications concerning the respondent medical practitioner.
- Under section 289 of the adopted National Law, the Board was empowered to continue to deal with the matter and it was required to be dealt with under the preceding statutory law of the local jurisdiction, namely the Health Practitioner’s (Disciplinary Proceedings) Act 1999 (Qld) (“the Disciplinary Proceedings Act”).
- The present proceeding is therefore to be dealt with as a reference to QCAT under section 126 of the Disciplinary Proceedings Act.
- The grounds on which disciplinary action may be taken in such a proceeding are set out in section 124, and the decisions and orders that may be made by QCAT are relevantly prescribed in sections 240-244 of that Act.
- Dr Rall’s registration ceased on 31 December 2009 and he has not sought its renewal. The present proceedings however may be conducted as if the practitioner was still registered, and the orders that may be made against former registrants are set out in section 243 of the Disciplinary Proceedings Act.
Charges and issues
- There are two allegations of “unsatisfactory professional conduct”. They stem from allegedly inappropriate examinations by Dr Rall of two female patients. In each instance, it is alleged that three separate sub- paragraphs of the definition of “unsatisfactory professional conduct” are made out by the evidence, namely:
- Professional conduct that is of a lesser standard than that which might reasonably be expected of the registrant by the public or the registrant’s professional peers;
- Infamous conduct in a professional respect; and
- Misconduct in a professional respect.
- Past decisions have established that a higher level of misbehaviour needs to be shown to sustain a finding under (c) or (d) above than to sustain a finding under (a).
- The primary point for this Tribunal to determine will be whether or not it is satisfied to the required standard of proof that Dr Rall’s conduct involved sexual self-gratification. If it did, all three findings will be appropriate. If, on the other hand, the case establishes no more than irregularity in procedure and/or some medical incompetence or inadequacy, a finding may still be open under sub-paragraph (a) above.
- It is noted that:
- Dr Rall has indicated his consent to a finding that he has behaved in a way that constitutes unsatisfactory professional conduct;
- He has undertaken not to seek medical registration in Australia in the future;
- He has agreed that the Tribunal may order him to refrain from reapplying for registration as a health practitioner in any jurisdiction in Australia and that it may also order that he refrain from applying to be relieved of his undertakings to the Tribunal.
- Even so, it is the duty of this Tribunal to find the facts and to respond with a sanction that is appropriate to that view of the facts.
- Dr Rall has consistently denied any sexual motivation in his dealings with his patients. The evidence against him consists principally of the interpretations of his actions by the two complainant patients, and the opinions of two expert medical practitioners whose evidence was originally sought by the police when they investigated the complaints.
- There was nothing in the evidence that cries out to a lay person for disbelief of either the complainants, or of Dr Rall’s explanations. The case turns upon the acceptability of the various explanations, expert opinions and judgment in the light of accepted medical practice. Assessment of the evidence, therefore, depends heavily upon an understanding of medical procedures concerning the conduct of vaginal examinations. In this situation, I have relied heavily upon the assistance of the medical assessors in reaching a conclusion.
- The following paragraphs state the primary facts disclosed in the evidence.
- Dr Rall qualified in 1975 as a general medical practitioner at the University of Witwatersrand.
- He does not claim particular expertise in gynaecology, but has practised a wide range of gynaecological procedures in the course of an extensive career as a medical practitioner.
- He practised in South Africa until 2002 when he came to Australia and commenced practice with Dr John Lloyd and others at the Yeppoon Medical Centre, Queensland. He practised there for the following 7 years. He was and remains well regarded by Dr Lloyd.
- In 2009, there occurred the examinations that have led to the present complaints.
- Dr Rall first saw one of the complainants, patient X, in March 2009. She was at that time a married mother. Her symptoms included mood swings, suspected menopausal onset, and she wanted a pap smear performed. She was also concerned about a previous doctor’s comment that she had a wart on her cervix.
- Dr Rall conducted a digital internal examination on 2 March 2009. There was no third person present, but patient X did not seek one and said that the examination “did not feel abnormal in any way”. No issue of misconduct was raised on this occasion, except in relation to the absence of a third person. There is room for considerable divergence in medical practice in relation to procedures taking place in this way.
- A follow-up consultation took place on 21 April 2009. The prospect of a further internal examination was raised, but patient X was menstruating and considered an internal examination inappropriate. Dr Rall provided her with some sample contraceptive pills with a view to regularising her cycle. He also suggested further investigation by ultrasound, but she “was not keen” about this because it would require her to travel to Rockhampton. Again, no impropriety is suggested regarding this consultation.
- A further appointment was made for 5 May 2009. This consultation involved an attempt to discover abnormalities in various areas, including the right ovary (which in the course of the examination, Dr Rall said he had difficulty in locating), the uterus and the bladder.
- The main basis of complaint is that he placed his thumb on her clitoris during the examination, and moved his fingers in both directions. This eventually stimulated her unwillingly.
- The "Statement of Agreed Facts" describes examination in the following terms:
- Dr Rall conducted the bimanual examination by placing the palm of his left hand over her lower abdomen, whilst using the middle and index fingers of his right hand to palpate the patient's internal organs.
- Dr Rall moved his fingers in and out of the patient, while examining the uterus for any signs of enlargement over possible pregnancy. He also stated that he was examining patient X's ovaries.
- Patient X suddenly opened her eyes with a frown and slightly closed her legs.
- Dr Rall then said softly words to the effect of "I am sorry if I offended you".
- There was further discussion of her condition, in the course of which Dr Rall said "I'm sorry if you felt uncomfortable with the examination".
- Patient X's evidence describes this examination in some detail. She recounts that her eyes were shut, that Dr Rall advised her that he would check her ovaries, commenting "I'm trying to get this lubricant to work" while inserting his fingers, and that while examining with his fingers, his thumb was constantly touching her clitoris – "just resting" on it, "not stimulating me". He commented that he was having difficulty locating her right ovary, which he was attempting to examine for any enlargement. Having found it, he commented that it seemed normal and that "It is often hard to find the ovaries." Thus far, there was no sexual arousal, but she felt "extremely uncomfortable".
- Her evidence continues:
- Dr Rall then talked about my prolapsed bladder and his fingers moved forward to my bladder area.
- He said words to the effect of "Some women have problems with their bladder" and that my bladder "seemed okay". He then stopped talking and began to stimulate me.
- The movement of his fingers stimulated me.
- The stimulation occurred suddenly. I was not stimulated at all before that, just uncomfortable.
- I have had numerous internal examinations in my life, and this has never occurred before.
- I had my eyes shut throughout the examination but I immediately said "stop" and opened my eyes. I looked right at him and he was looking at me.
- I pushed Dr Rall's right hand away and he removed both of his hands from me and stepped back. He appeared to pause as he stepped back.
- He then patted my tummy and said very quietly words to the effect of "I'm sorry if I offended you". I cannot recall if he said anything after that.
- I recall responding with "That's fine", although I do not know why I would have said that.
- Dr Rall, then shut the curtain and stood on the other side of it, still in the consultation room, while I got dressed. While I was getting dressed, I was in disbelief.
- The complainant made no complaint to the staff following the incident, but promptly discussed it with a friend and made an early complaint to the Health Complaints Commission.
- Dr Rall's detailed statements to the Board and this Tribunal concerning the relevant examination are generally consistent with the patient's description. However, Dr Rall does not suggest that his thumb was in constant contact with the patient's clitoris and, understandably, there are variations of detail. In broad outline, there is consistency between the two statements of the event.
- The other complainant, patient Y, was then a mother in her sixties. She had received extended treatment from Dr Rall for skin rashes in 2008, including a number of electromagnetic “chair treatments”. She felt that these were improving her bowel and urinary concerns.
- On 11 May 2009, following a chair treatment, she mentioned a problem concerning urination and asked if it could be caused by prolapse. Dr Rall asked if she wanted him to investigate and she agreed. She was “comfortable” with him and did not ask for a nurse or chaperone.
- Her evidence concerning the examination includes the following:
- Dr Rall put his right fingers into my vagina and placed his thumb on my clitoris. I cannot remember where his left hand was at that stage.
- I know that he had put his thumb there because I did not even let my husband touch my clitoris, as I do not like it.
- When Dr Rall was touching my clitoris. I knew that it was wrong but I was unsure how to get out of this situation. I was unsure how to react.
- During the examination, Dr Rall was only touching me with his right hand. I recall that Dr Rall did not touch my abdomen or any other part of my body with his left hand.
- I placed my left hand on the left side of my abdomen to indicate where I was starting to feel soreness. I believe that I felt soreness because I was tensing up my body.
- I said to Dr Rall words to the effect of "This is where there's soreness and discomfort". I said this in an attempt to get his attention away from what he was doing. Having had several children, I had undergone numerous vaginal examinations and none of them or anything like what he was doing. I didn't feel it was a normal examination.
- I felt Dr Rall began to massage my clitoris with his thumb and move his fingers internally as well. I felt extremely uncomfortable.
- While I am unsure exactly how long the examination took, it felt like it took a long time.
- Throughout the examination, I did not look at Dr Rall's face, but I felt that it was the most irritating uncomfortable sensation and I never want to experience it again. I have not been back to a doctor since for any internal examinations of any sort, for example pap smear tests.
- Patient Y did not complain or accuse Dr Rall of misconduct. She remained silent while he made further comments about her condition and wrote a script for ointment before she left. However, there is no doubt that she was upset about what had happened.
- She promptly told her husband of her concerns, but nothing came of this. She continued to attend Dr Rall for further chair treatments and consultations, but asked that a female doctor in the group do all further female investigative procedures.
- In mid-June she spoke to her daughter and to others including a counsellor, which lead to her speaking with the police on 17 June 2009.
- Investigations quickly ensued by both police and the Medical Board. The police obtained reports from the GMO (Dr Morrison) and an experienced gynaecologist (Dr Guest). These were mainly unfavourable to Doctor Rall.
- The police investigation included a “pretext telephone conversation” between Patient X and Dr Rall, but this did not advance the case against him. His responses were consistent with the stance he has consistently taken.
- The Board proceeded with its investigation in the course of which Dr Rall’s solicitors offered voluntary undertakings concerning the use of chaperones and the keeping of an appropriate register. On 25 September 2009, the Board accepted these undertakings and did not insist upon imposing them independently on his registration.
- On an unknown date, probably toward the end of 2009 or early 2010, before police charges had been laid and before any disciplinary determination had been made, Dr Rall returned to South Africa.
- For a time he continued to practise in South Africa. His solicitors have indicated that from at least as early as July 2014 he has “retired completely as a medical practitioner”.
- The police investigation reached the stage in early 2010 that an arrest warrant was issued based on two counts of rape. From that time forward, any return to Australia would have entailed and still would entail the prospect of prosecution.
- In relation to both complaints, due allowance has to be made for the possibility of misinterpretation by a patient of an unintended stimulation.
- Dr Rall has conceded some inadequacy on his part, but maintains that “the suggestion that the examinations were 'actuated for self gratification' are groundless and deeply offensive to me”.
- I turn to the question whether the inference should be drawn that his actions were sexually and improperly motivated.
- A necessary implication of such a finding is that the respondent committed two crimes of rape. The Board's submissions did not put it that way, but that is the unavoidable conclusion if the sexual gratification allegation is accepted.
- A finding of improper sexual invasion should not be made lightly, and must be approached on the basis commonly referred to as the Briginshaw standard. The standard of proof in such a matter remains the civil standard, but the Tribunal must be conscious of the nature, gravity and consequences of the relevant findings. As Dixon J observed in Briginshaw, in relation to such matters – "reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.
- I do not understand this view to have been displaced by later decisions on the standard of proof in civil proceedings, such as Rejfek v McElroy and Neat Holdings v Karajan Holdings Pty Ltd. The present litigation is civil and the standard of proof is on the balance of probabilities. It is, however, a disciplinary proceeding with very serious allegations capable of producing serious consequences, and accordingly the necessary "reasonable satisfaction" is not to be reached lightly or on flimsy evidence. It is well established that the Briginshaw civil standard applies generally to disciplinary proceedings such as the present.
- By choice of the parties, the present matter is to be determined "on the papers." The difficulty and expense of arranging a full forensic exercise with cross-examination of witnesses, and the desirability of avoidance of witnesses’ distress are factors that make that choice readily explicable. However, the fact remains that there has been no cross-examination of any witness, and little forensic testing of the evidence to permit confident conclusions to be drawn.
- The central contested issue would require a finding as to Dr Rall's state of mind. Conflicting opinions and hypotheses are open as to this. I may say that not all of the opinions expressed by the medical witnesses accord with the experience of the medical assessors in this matter. The evidence leaves open the quite reasonable possibility that Dr Rall's actions were innocently motivated. On the evidence, as it stands, I am not prepared to find the sinister state of mind that is alleged.
- Whether his conduct constituted satisfactory medical practice is a separate question. However, the first and foremost issue – whether his conduct was sexually motivated – has not been satisfactorily proved to the required standard.
- I turn then to the remaining issue concerning "lesser standard" practice under subparagraph (a) of the definition of "unsatisfactory professional conduct".
- The basis of such inadequacies includes the following:
- Absence of chaperoning or offer of chaperone.
- Unnecessary internal examination.
- Unusually lengthy time for internal examinations.
- Technique – whether thumb position and movement of fingers in both directions are seriously substandard.
- As to the chaperoning issue, this is a vexed area of medical practice, which Dr Morrison concedes is "not completely black and white". There appears to be a wide gap between on the one hand the urgings of various guidelines and medical indemnity insurers to insist on the use of chaperones, and on the other hand the economic reality of most general practices, and even possibly the preference of patients.
- Dr Rall points out that he practised in an era where chaperoning was not an issue. He now indicates that:
"I will readily concede (after this traumatic experience) that I should certainly have insisted on a qualified nursing sister by my side. Unfortunately, there was not always a nursing sister employed at all times at the Yeppoon practice, with staff changes. I therefore agree with Dr Morrison that I should have insisted on a chaperone."
- That concession is made in hindsight of the present proceedings. I would have difficulty in making a finding of unprofessional conduct based on this allegation and concession alone. However, I consider that it contributes to a fuller picture of his overall conduct in two very unsatisfactory examinations.
- There is evidence that the examination of patient X of 5 May 2008 was "unnecessary". Both Dr Morrison and Dr Guest consider this to be the case. In light of Dr Rall's concession of unsatisfactory conduct, a finding to that effect is open.
- As to the time taken for the examinations, there is nothing to contradict his claim that he is a meticulous and thorough medical practitioner who might take more time for such procedures than others might. In this context, he states that he may well have taken longer than an expert gynaecologist and that additionally, "these were 'difficult' patients where I wanted to be certain, I had not missed pathology. They were both critical of a female colleague and both expressed their satisfaction of my care during the course of consultations. In both cases the patients interrupted my routine of examination by asking questions and bringing up other complaints."
- As far as his technique in the conduct of the examinations is concerned, findings are reasonably open that he insufficiently explained what was happening both during and after the procedures. Two relevantly experienced women who had undergone previous internal examinations were made to feel very uncomfortable and found it "completely different" to what they had previously experienced. They felt uncomfortable, strange and violated. A finding of conduct of a lesser standard than that of acceptable practice is open.
- Overall, it is appropriate that a finding of unsatisfactory professional conduct is recorded, pursuant to subparagraph (a) of the definition of that term in the Disciplinary Proceedings Act.
- Dr Rall left Australia voluntarily and it is unrealistic to think that he will ever voluntarily return. He has now ceased practising his profession for some years. He claims to suffer seriously from depression as a result of the present criminal complaints and disciplinary proceedings. His antecedents paint a dismal picture that includes his care of a daughter with Down Syndrome, which has kept him in relatively poor financial circumstances. He seems to have changed course and to have directed his energies to work in his wife’s business.
- The order proposed by the parties is to the effect that he be permanently prevented from reapplying for registration in Australia. Such an order would not ordinarily be made in a case where findings are limited to the less serious end of the spectrum (for example, under subparagraph (a) of the definition of unsatisfactory professional conduct).
- The appropriate order must be something less than the equivalent of striking off from medical practice for life. It seems highly unlikely that Dr Rall will attempt to return to practice here, but the appropriate order should be a prevention of reapplication for a finite period. Such an order may be made under sections 243(2)(b)(ii) and 243(2)(b)(v) of the Disciplinary Proceedings Act. These sections permit the Tribunal to order the conditions under which a former registrant may reapply for registration, and to order a former registrant to refrain from doing anything that the Tribunal reasonably considers inappropriate.
- The order must also be consistent with the normal disciplinary response that would follow findings of less than gross substandard practice under subparagraph (a) of the definition. In the circumstances, a period of three years seems appropriate.
- Any future application for re-registration would have to go before the Board, which would have power to impose appropriate conditions on any future practice of medicine.
- The following orders will be made:
- A finding is recorded that in the months of March and May 2009, Dr Rall was guilty of unsatisfactory professional conduct in that his professional conduct was of a lesser standard than that which might reasonably be expected of a registrant by the public or by his professional peers;
- Under section 289 of the Health Practitioner Regulation National Law Act 2009 (Schedule) and under section 243(2)(b)(v) of the Health Practitioner’s (Disciplinary Proceedings) Act 1999 (Qld), it is ordered that Dr Rall refrain from reapplying for registration as a health practitioner in any jurisdiction in Australia for a period of three years from the date of this order.
Disciplinary Proceedings Act s 9.
Pursuant to Disciplinary Proceedings Act Schedule (Dictionary).
Applicant’s Submissions, filed 18 December 2015, Annexures 1 & 3.
Ibid, Annexure 2.
Statement of Agreed Facts, filed 15 January 2015 at paragraphs 52-55, 58.
Patient X's affidavit filed 2 December 2014, paragraphs 60-69.
Patient Y's affidavit filed 23 February 2015, paragraphs 34-43.
Statement & Reports of Dr Morrison, dated 30 July 2009; Statement & Report of Dr Guest, dated 8 March 2010.
Briginshaw v Briginshaw (1938) 60 CLR 356, 362.
(1965) 112 CLR 517, 521.
(1992) 67 ALJR 170, 171.
Adamson v Queensland Law Society incorporated  1 Qd R 498, 504; Ooi v Medical Board of Queensland (1997) 2 Qd R 176.
Dr Morrison Report 2, dated 18 March 2015, page 1.
Ibid, page 2; Report of Dr Guest, 8 March 2010.
- Published Case Name:
Medical Board of Australia v Rall
- Shortened Case Name:
Medical Board of Australia v Rall
 QCAT 228
Hon J B Thomas, Judicial Member
12 Apr 2016