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Rao v Medical Board of Australia[2021] QCAT 145

Rao v Medical Board of Australia[2021] QCAT 145

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Rao v Medical Board of Australia [2021] QCAT 145

PARTIES:

pradeep hanumantha rao

 

(applicant)

 

v

 

medical Board of australia

 

(respondent)

APPLICATION NO/S:

OCR018-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

6 May 2021 (ex tempore)

HEARING DATE:

6 May 2021

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:

Dr Jennifer Cavanagh

Dr Arankanathan Thillainathan

Mrs Gyl Stacey

ORDERS:

  1. The decision of the Medical Board of Australia of 18 February 2021 is set aside.
  2. Any submissions by the applicant regarding costs be served and filed by 4:00 pm on 21 May 2021.
  3. Any reply submissions by the respondent regarding costs be filed and served within 14 days of service upon them of any submissions by the applicant.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – APPEALS AND APPLICATIONS FOR ORDER DIRECTING REGISTRATION – where the Board decided to take immediate action and impose conditions on the applicant’s registration – where the applicant sought a review of the Board’s decision to impose conditions on his registration – whether the applicant presents a serious risk to persons – whether the decision of the Board should be set aside

Health Practitioner Regulation National Law (Queensland), s 156, s 159, s 199

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 23

LCK v Health Ombudsman [2020] QCAT 316

Oglesby v Nursing and Midwifery Board of Australia [2014] QCAT 701

Smith v Physiotherapy Board of Australia [2020] SACAT 67

Zaphir v Health Ombudsman [2017] QCAT 193

APPEARANCES & REPRESENTATION:

 

Applicant:

J R Jones instructed by K&L Gates

Respondent:

M J Lucey of Clayton Utz

REASONS FOR DECISION

  1. [1]
    The applicant, Pradeep Hanumantha Rao, is a registered health practitioner. He was awarded the degree of Bachelor of Medicine, Bachelor of Surgery in 2000 and in 2017 was awarded a fellowship of the Australian College of Emergency Medicine. Prior to the matter the subject of this appeal, he has never been the subject of a patient complaint to a regulatory body in his 20 years of practice of medicine. In recent years, he has been employed as a staff specialist in the emergency department at Gladstone Hospital since 2017, as well as the director of emergency medicine training for the emergency department of that hospital. Since February 2015, he has also been engaged as a visiting medical officer in the emergency department of Greenslopes Private Hospital. At the time of the matter the subject of this review, he was also engaged as a visiting medical officer at St Andrew’s War Memorial Hospital where he worked up to four shifts per month in the emergency department.
  2. [2]
    On the morning of 27 August 2020, whilst working in the emergency department of St Andrew’s, the applicant examined Patient A, who had presented to the emergency department complaining of chest pain.
  3. [3]
    On 1 September 2020, Patient A made a complaint to St Andrew’s regarding the applicant’s examination. Following upon that complaint, on 5 January 2021, the respondent Medical Board of Australia, pursuant to section 156 of the Health Practitioner Regulation National Law (Queensland) (National Law), decided to take immediate action by suspending the applicant’s registration.
  4. [4]
    The applicant, pursuant to section 199 of the National Law, made an application to the Tribunal to review the decision of the Board.
  5. [5]
    On 11 February 2021, the Tribunal made orders by consent inviting the Board to reconsider its decision, pursuant to section 23(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
  6. [6]
    On 18 February 2021, the Board, pursuant to section 23(2)(b)(iii) of the QCAT Act, decided to set aside its original decision and substitute a new decision:
    1. (a)
      to form a reasonable belief under section 156(1)(a)(i) of the National Law that the applicant continues to pose a serious risk to persons because of his conduct and/or performance;
    2. (b)
      that it is necessary to take immediate action to protect the public pursuant to section 156(1)(a)(ii) of the National Law;
    3. (c)
      to revoke the suspension imposed on the applicant’s registration pursuant to section 159(2)(b) of the National Law; and
    4. (d)
      to take immediate action under section 156(1)(a) of the National Law by imposing conditions on the applicant’s registration.
  7. [7]
    The conditions, in summary, provided that the applicant may only practise in places of practice approved by the Board, must not have any contact with female patients, must only have contact with patients who have been allocated to the applicant for management by a Board approved supervisor, and must be supervised by another registered health practitioner when practising as a medical practitioner.
  8. [8]
    Pursuant to section 23(4)(a) of the QCAT Act, the decision of 18 February 2021 is taken to be the reviewable decision the subject of these proceedings.
  9. [9]
    Section 20 of the QCAT Act provides that the Tribunal must hear and decide the review by way of a fresh hearing on the merits, with the purpose of the review being to produce the correct and preferable decision.
  10. [10]
    Pursuant to section 19 of the QCAT Act, the Tribunal must decide the review in accordance with the enabling Act under which the reviewable decision being reviewed was made, in this case, as already stated, the National Law.
  11. [11]
    Section 156(1) of the National Law relevantly provides as follows:

156  Power to take immediate action

  1. (1)
    A National Board may take immediate action in relation to a registered health practitioner… registered in a health profession for which the Board is established if –
  1. (a)
    the National Board reasonably believes that –
  1. (i)
    because of the registered health practitioner’s conduct, performance or health, the practitioner poses a serious risk to persons; and
  1. (ii)
    it is necessary to take immediate action to protect public health or safety…
  1. [12]
    The approach of the Tribunal in such proceedings is not controversial. The Tribunal approaches the matter on the basis that an immediate action order does not entail a detailed inquiry by the Board or by this Tribunal. It requires action on an urgent basis because of the need to protect the public.[1] That does not mean that the material available to the decision maker should not be carefully scrutinised in order to determine the weight to be attached to it.[2]
  2. [13]
    The criteria provided in section 156(1)(a) of the National Law are that of a reasonable belief as to a serious risk.
  3. [14]
    A “belief” is the inclination of the mind toward assenting to, rather than rejecting a proposition. In Oglesby v Nursing and Midwifery Board of Australia,[3] the then Deputy President Horneman-Wren SC DCJ stated:

… I am not of the view that it is necessary to be satisfied that certain conduct will be engaged in by a registered health practitioner before the reasonable belief can be held that the practitioner poses a risk to persons. In my view, it is not even necessary to be satisfied that it is more probable than not that the practitioner will engage in some conduct in the future. In my view, a reasonable belief may be held that a practitioner poses a serious risk to persons if, based upon evidence of past conduct, there is a real possibility that the practitioner will engage in conduct which could be harmful to persons. If the possibility of engaging in the conduct was so remote as to be fanciful, or the possible harm trivial, then I would not think that a belief could reasonably be held that the practitioner posed a serious risk to persons.

  1. [15]
    In LCK v Health Ombudsman,[4] Judicial Member McGill SC respectfully agreed with such comments, except insofar as the last sentence might suggest a view that there is a serious risk to persons whenever the risk is not so remote as to be fanciful and the harm if the risk materialises is more than trivial. Judicial Member McGill SC did not agree with that comment if it was to be read that way. I respectfully agree with the comments of Judicial Member McGill SC.
  2. [16]
    To similar effect as the statement of Deputy President Horneman-Wren SC DCJ, and in terms particularly apt to the matter under consideration, the South Australian Civil and Administrative Tribunal in Smith v Physiotherapy Board of Australia[5] stated as follows:

A review under section 156 requires the formulation of a reasonable belief. It does not require findings on the balance of probabilities concerning the applicant’s conduct. In a matter of this nature, we are to scrutinise the evidence, and assess in a general way the weight that may be given to it, but we are not required to finally resolve disputed issues as to the applicant’s conduct or intentions.

Where conduct is not in dispute, it can be taken into account in considering whether the Tribunal has a reasonable belief. Where conduct or the motivation for conduct is disputed, it is not the role of the Tribunal in the present context to resolve that dispute. However, the Tribunal may, in assessing the risk for the purposes of section 156, have regard to the allegations as unresolved issues or concerns. The Tribunal may also have regard in a general way to the apparent strength of the competing positions. In our view, there are some parallels to the approach taken to the assessment of risk in other legal contexts, albeit that we are here dealing with untested allegations rather than allegations that remain unproven one way or the other after a hearing.

The applicant contends that his conduct can be explained in terms of deficiencies in communication and the obtaining of consent. He has denied any deliberately improper or sexually motivated conduct. Insofar as he disputes the allegations against him, the evidence of those matters has not been tested.

The applicant correctly submitted that we should scrutinise carefully the evidence of the patients. We have done so. Some of the allegations might fall away, or be adequately answered, in the context of the contested hearing. Others might not be proved to the requisite standard. The applicant might eventually be exonerated of any wrongdoing. We have due regard to these factors and to the presumption of innocence.

  1. [17]
    As to the term, “serious risk”, the term is not defined in the legislation and takes its ordinary meaning in its statutory context. The word “serious” is defined in the Macquarie Dictionary as “of grave aspect; weighty or important; giving cause for apprehension; critical; to be considered as an extreme example of its kind.”
  2. [18]
    In assessing whether a person poses a serious risk to persons, it is helpful to consider the nature of the risk, the likelihood of its eventuating and the seriousness of the consequences if the risk does eventuate.
  3. [19]
    The material before the Board and before the Tribunal permits uncontroversial findings as to the circumstances leading up to the applicant’s examination of Patient A.
  4. [20]
    A Queensland Ambulance Service report form indicates that an ambulance was dispatched at about 8.00 am on 27 August 2020 to a general practitioner’s clinic where Patient A had presented due to ongoing chest discomfort since about 5:30 am. Patient A reported to her general practitioner that she was stressed and had done some physical work with horses the previous evening which may have contributed to her chest discomfort. The general practitioner was of the view that further cardiac treatment was unnecessary. Patient A also reported the discomfort was consistent with chronic sternum pain. Patient A was transported to St Andrew’s for further investigation with the primary diagnosis being recorded as, “pain – muscular/soft tissue”.
  5. [21]
    A statement of Patient A taken by the Office of the Health Ombudsman on 12 October 2020 provides further background to the circumstances leading to Patient A’s attendance to the general practitioner and transportation to St Andrew’s. It is apparent from the terms of the statement that Patient A was dissatisfied with the treatment she initially received at St Andrew’s. She goes on to describe her contact with the applicant. She describes the applicant looking at a printout of an ECG saying something similar to, “does not look like anything is going on”, and informing her that he was going to send her for a chest X-ray.
  6. [22]
    Her next contact with the applicant after the X-ray had been obtained is described as follows:

He then entered the cubicle and in doing so, he closed the curtains in a forceful manner. There was no one else present. He told me my bloods were fine, the X-ray was fine, and he would do a breast check. I assumed from this information that I had not had a heart attack, though this was never said to me, just an assumption based on what little I was told.

I thought the suggestion of a breast check was highly unusual. I have a history of heart issues which have required consultations with heart surgeons and specialists in Tasmania, Victoria, and Queensland and I have never, on any of these occasions, been told a breast check or examination was required. I felt this request by him was very odd, but believed that he was presumably the doctor, he would know what was best under the circumstances.

At no time did he ask me if it was okay if he touched or examined my breasts.

At no point did he ask me for consent, and at no time did I consent to him, to touch or examine my breasts.

…

I was lying on the bed with the blanket over my legs and he positioned himself on my right-hand side. Using both his hands independently, he reached through the gown and proceeded to squeeze my breasts, one at a time in a massaging type of way. It was at this time I realised he was not wearing any gloves.[6]

He then asked me to sit in an upright position which left a gap between my back and the bed. My legs remained stretched out in front of me. He said, “Going to check them from behind,” and positioned himself into the gap between my back and the bed, enabling him to lean over my shoulders and place his right hand on my right breast and his left hand on my left breast. He then squeezed both breasts at the same time and appeared to play with my breasts. He held my nipples between his thumb and fingers and tilted them up and down several times. He then patted me on the back and said, “They are fine”.

At no time did he discuss or ask me about nipple discharge or pain.

At no time did he tell me my breasts were lumpy, or that I should have had a follow-up check with my regular GP.

He did not provide me with a referral or documentation to take to another practitioner for a follow-up appointment.

Whilst remaining in the upright position, with my legs still stretched out in front of me on the bed, I was in a state of shock, disbelief, and unable to comprehend what had just taken place. Making his way to the cubicle curtain to leave, he placed his hand on my right leg, patted it and said, “There’s no problems there”. Again, I felt extremely uncomfortable, while he appeared to be totally comfortable, quite familiar, and very smooth with everything he was doing and had done.

…

Before he left the cubicle, I asked him for a medical certificate for that day and the following day. When he returned with the medical certificate, he handed it to me and placed his right hand on my right leg again and said, “You’re right to go”.

I have never been in previous ER situations, had a doctor place his hand on me in the same manner as he did. Not on my leg or any other part of my body. The experience with him was creepy. I felt uncomfortable, vulnerable, dirty and grubby, even violated.

  1. [23]
    As a result of the complaint by Patient A, St Andrew’s conducted an internal review by the Director of Medical Services and a risk and quality manager. A review of Patient A’s medical record was completed, and the reviewer spoke with Patient A, the applicant, subject matter experts and staff working in the emergency department at the time. I consider the following extracts from the internal review report to be of particular relevance:

Given the nature of the intimate examination, the responsibility rested with Dr Rao to properly document informed consent, which Dr Rao has failed to do. While the reviewers acknowledged that the patient did not voice a verbal objection to the examination, this can be explained by her lack of understanding about what was occurring and why. Dr Rao was unable to satisfy the reviewers that fully informed consent was obtained.

…

There is no documentation in the patient’s medical record that a breast examination was completed or that consent for this was obtained.[7]

…

During conversations with those staff working in the department and the director of emergency medicine, no previous issues or concerns were raised.

The reviewers have considered the patient’s comments regarding Dr Rao putting his hand on her leg and his explanation of this situation. The reviewers acknowledged that the patient’s description of this is inappropriate. It is also noted that although Dr Rao stated he would normally put a hand on the patient’s shoulder, on this occasion he put his hand on her leg, as she had her legs (knees up). Dr Rao needs to be more aware of his conduct regarding this in the future.

Given the seriousness of the allegation about an inappropriate motive for performing a breast examination, a higher threshold of satisfaction was required before the reviewers could be satisfied that the concern was substantiated. The reviewers were not able to substantiate that the conduct of Dr Rao in performing the breast examination and other touching arose from a motivation other than clinical care.

…

When asked about training or experience of breast examinations? It was confirmed this was completed during medical training on surgical rotation and included asking the patient to sit and then lean forward. At this time, Dr Rao noted he had the hinderance (sic) of the bed in the room.

A subject matter expert (breast surgeon) has advised to complete a breast examination it would be best practice to ask the patient to sit up (on the side of the bed) and then the doctor would come from one side and then the other to complete the exam. If for a cardiac reason they were reclining in a bed it would be reasonable to ask the patient to sit forward and examine the patient from that side of the bed and then reach from behind to examine the other side if you were unable to move around to the other side of the bed. It would also be appropriate to examine the nipples as a lump can be behind them.

On speaking with subject matter experts from Emergency medicine as well as a Breast Surgeon the reviewers acknowledge that Dr Rao believed there was a clinical reason to progress to a breast examination. Although the examination of the breasts was not keeping with standard clinical practice it can be explained by the configuration of the room and the patient being in a cardiac bed which is why it may not have been feasible to have her sitting on the side of the bed.

The reviewers considered that Dr Rao’s standard of practice fell below that expected because communication with the patient was deficient regarding the requirement for a breast examination in the context of an emergency presentation, there was inadequate informed consent, it was inappropriate to fail to document the rationale for a breast examination and the results of that examination, and there was a failure to communicate with the patient’s GP or specialist regarding these matters.

The reviewers were not satisfied by any explanations given by Dr Rao about these matters.

In addition, the reviewers consider it would have been preferable for the patient to be provided with the option of a chaperone, and make a general recommendation below in relation to this for all patients. While considered preferable, given a policy is not currently in place about chaperoning, the reviewers did not make a finding that a failure to do so on this occasion fell below the expected standard of practice.

  1. [24]
    The Board placed particular emphasis upon a risk and quality file note dated 10 September 2020 which appears to have involved conversations between the appointed internal reviewers mentioned earlier; that is, the Director of Medical Services and the risk and quality manager; but also the Director of Emergency Care. Whilst unclear who some of the comments recorded in the file note are from, a reasonable inference would be that they record views expressed by the Director of Emergency Care including the following:
  • It is highly unusual to do a breast exam for a chest pain. I do not recall doing a breast exam unless a complaint re a breast pain
  • Might press on costo-chondral joints
  • Would wear gloves and use back of the hand to move breast out of the way/ wear gloves

…

  • Not clear how to go from chest pain to breast exam
  • He said that she had a “lump” but none of that is documented
  • If we find a lump we need to refer it on.

…

  • Would you examine and refer to GP?
  • Yes but you would write it in the notes or in a letter
  • You always examine lying down; Never do a seated breast exam and not sitting up with someone from behind.
  • When I spoke with Pradeep he confirmed that is how he examined the patient.
  • Wouldn’t be common to examine a breast in an emergency situation – you would refer then to go to their GP
  • Outside mastitis you would never see a breast complaint; unless a post op patient in emergency.

…

  • No other complaints re him of this nature or any other serious complaints that I am aware of at any other hospital

…

  • Concerned he has done this to other patients. Most patients may not feel they can speak up. Worry about others before this one. This may not be a new practice.

…

  • How appropriate is it to touch their leg?
  • I may do that to – may touch their shoulder, hold their hand. Poor judgment, I wouldn’t touch a male on the upper leg.[8] Would normally go for hand or shoulder.
  1. [25]
    The applicant has sworn two affidavits in the proceedings. He deposes that, since the complaint, he has undertaken further education in relation to effective communication, use of chaperones, and the Medical Board of Australia Code of Conduct. Since being advised of the complaint, he has implemented the use of a practice monitor for all intimate examinations of female patients. Prior to his suspension by the Board, at Gladstone Hospital that would involve either the nurse or the treating doctor being present where an intimate examination was required. He deposes to having liaised with the Director of Medical Services, the acting director of the emergency department and the staff specialist at Gladstone Hospital in relation to arrangements for use of a practice monitor. Prior to his suspension, at Greenslopes Hospital such practice also involved either the nurse or a treating doctor being present when any intimate examination was required. The applicant deposes to have liaised with the director of the emergency department at Greenslopes Hospital in relation to facilitating such a practice. The applicant deposes that he “will not, under any circumstances, perform an intimate examination of a female patient without a practice monitor present until this complaint is fully resolved.”
  2. [26]
    The applicant deposes to have been unable to practise in any capacity since the original immediate action decision of 4 January 2021. The conditions associated with the substituted decision of 18 February 2021 have meant that he has continued to be unable to practise. He explains that his role as emergency specialist in the emergency department of Gladstone Hospital is such that he is likely to be called upon to treat a female patient with a life or limb threatening injury or disease. The supervisory conditions imposed by the Board are such that he is unable to be safely implemented in the emergency department, as this may well result in a patient not receiving the care and treatment that they require.
  3. [27]
    The applicant deposes to the significant personal and professional ramifications for himself and his family as a consequence of the immediate action.
  4. [28]
    I pause here to note that the fact that regulatory action might result in serious adverse consequences for a professional has limited relevance to the questions to be determined by the Board and the Tribunal in this context. Such consequences would not have any relevance to the question whether a practitioner presents a serious risk to persons. They do, however, highlight the importance of careful consideration whether the statutory criteria for immediate action are met and that any action taken be addressed specifically to any such risk and be the least onerous necessary to address such risk.
  5. [29]
    The applicant deposes that he has been advised by his supervisor, Dr Kumar, at Gladstone Hospital that the hospital would be able to support a practice monitor condition for intimate female examinations.
  6. [30]
    The Tribunal has before it an affidavit from Dr Mark Baldwin, the director of the emergency centre at Greenslopes Private Hospital. He has known the applicant since August 2018 and is his direct supervisor at that hospital. He deposes to having found the applicant to be wholly professional in his interactions with patients and staff at Greenslopes Private Hospital. The applicant has not been the subject of any complaints of inappropriate examination or behaviour at that hospital. Dr Baldwin considers the applicant to be a capable specialist in emergency medicine who is usually careful to be thorough and complete in terms of his clinical assessment and documentation. Based on his knowledge of the applicant’s practice at Greenslopes Private Hospital and his experience with regard to his good character, Dr Baldwin supports his ongoing registration as a specialist medical practitioner and his ongoing clinical privileges at Greenslopes Private Hospital.
  7. [31]
    The Tribunal also has before it an affidavit of Dr Dilip Kumar, the Director of Medical Services at Gladstone Hospital. He has known the applicant for four years and is the applicant’s direct supervisor at Gladstone Hospital. Dr Kumar deposes that the applicant is a highly skilled practitioner and good leader whose clinical skills and interpersonal skills have earned him great respect amongst his peers, juniors, nursing and other staff in the emergency department. Dr Kumar has not observed any issues with the applicant’s documentation. He has never observed any inappropriate conduct by the applicant towards female staff or patients, and has never received any complaints, formal or informal, of such a nature. Dr Kumar deposes as to the current conditions on the applicant’s registration limiting the applicant’s ability to perform clinical activities at the hospital and is of the opinion that it would be a challenge for the emergency department to accommodate the applicant’s return to work subject to those conditions. Dr Kumar deposes that the emergency department could facilitate a practice monitor for intimate female examinations. Dr Kumar is happy to support the applicant’s return to work as he is a valued member of the emergency department.
  8. [32]
    The applicant readily accepts that his failure to make any documentation of his treatment of Patient A was unacceptable. He provides an explanation for such lapse and, according to the evidence of his immediate supervisors in the Gladstone Hospital and Greenslopes Private Hospital, it would appear to be an uncharacteristic lapse on his part. The applicant also accepts that his communication with Patient A in all the circumstances was inadequate. As mentioned earlier, he has taken proactive steps to address that issue, and no doubt, given the consequences he has suffered as a result of immediate action, will be mindful of his need to do better in that respect in the future.
  9. [33]
    The real issue in relation to the question of any serious risk presented by the applicant and any need for immediate action is the fact of his breast examination of Patient A and the way it was carried out.
  10. [34]
    The Board submitted that there was an additional aspect of concern which based a reasonable belief of a serious risk and a need for immediate action, being the nature of the professional performance of the applicant in his examination of Patient A generally. The Board referred to, in this context, this particular part of the reasons of the Board for their decision of 18 February 2021 as communicated in a letter dated 19 February 2021:

The Board also noted with concern, irrespective of whether Dr Hanumantha Rao’s explanation of the need for a breast examination was clinically indicated, that Dr Hanumantha Rao failed to perform the breast examination in line with clinical standards as indicated in the internal report. The Board considers that the deficiencies demonstrated in Dr Hanumantha Rao’s performance goes beyond the performance of the breast examination and raises concerns for the Board that the overall management of (Patient A) who had presented with cardiac issues was not in line with chest management protocols. As such, the Board continued to consider that Dr Hanumantha Rao also poses a serious risk of harm to all the patients (not limited to female patients) arising from his performance in the form of causing patients to be reluctant to engage or seek help and worsening and/or deterioration of health as a result of unsafe medical practice.

  1. [35]
    I do not accept such submission made on behalf of the Board. I do not consider that such findings as expressed in that part of the reasons of the Board are reasonably open or, at least, not such as to provide any substantial basis for a finding of serious risk or a need for immediate action. In fact, the internal review found that the applicant had substantially complied with the protocol of the hospital for chest pain examination. The concerns associated with that were his failure to document the examination at all and also the questions raised as to his breast examination which followed upon his cardiac investigation. I disagree with the opinions expressed in that part of the reasons of the Board that there are some demonstrable professional performance deficiencies in the overall management of Patient A, leaving aside, of course, the failure to document and the deficiencies in patient communication and obtaining fully informed consent, which would provide a basis for immediate action.
  2. [36]
    The real question is one as to whether or not the fact and circumstances of the breast examination are such as to give rise to a reasonable belief as to a serious risk that the applicant might indecently assault a female patient or otherwise breach appropriate professional boundaries.
  3. [37]
    The role of the Tribunal on a review is, of course, not one of needing to find error on the part of the original decision maker. The reasons of the Board are not to be parsed with the type of scrutiny that would apply to reasons of a judicial decision maker. The task of the Tribunal is to make a fresh decision on all the material before it, not all of which was before the Board. Having said that, there are aspects of the reasons of the Board which do raise concern. They include the Board’s expressed concern that submissions on behalf of the applicant, “in which he continues to maintain that the alleged conduct falls on the lower end of boundary violations”, leaves the Board to be concerned about his “continued lack of reflection and insight in relation to the profound psychological impact his conduct has had on (Patient A) resulting in her taking time off work, seeking trauma counselling and reporting the matter to police (although it is noted that the police investigation is in its early stages and no charges have been laid).” I consider it to be unfair to extrapolate from submissions by lawyers on behalf of the applicant containing submissions that the alleged conduct is towards the lower end of allegations of such a nature, a lack of reflection or insight of the applicant. The affidavit material from the applicant clearly shows that he has insight into his inadequate communication with Patient A and empathy as to the adverse consequences she suffered.
  4. [38]
    As submitted by the Board, Patient A clearly suffered significant psychological consequences as a result of what she perceived as inappropriate treatment. I have taken that into account when considering the nature of any risk and the seriousness of the consequences if such a risk eventuated.
  5. [39]
    It is clear from the tenor of the Board’s reasons that it has proceeded on the basis that the actions of the applicant in examining the breasts of Patient A were not truly motivated by any clinical concern but by some type of sexual motivation. That is clear from the following part of the Board’s reasons:

Dr Hanumantha Rao used his position as a medical practitioner and exploited his position of trust by touching (Patient A’s) breasts and nipples during an unorthodox and unwarranted breast examination. The Board’s concerns are heightened by Dr Hanumantha Rao’s failure to document the clinical reasoning behind the breast examination, his explanation to the patient, the consent process and the examination itself. As a result, the Board continued to consider that Dr Hanumantha Rao has demonstrated a preparedness to exploit the inherent power imbalance that exists in the doctor-patient relationship in a clinical setting.

  1. [40]
    The motivation of the applicant in performing the breast examination remains a matter in dispute and does not, given the nature of the Tribunal’s task as explained in the authorities previously referred to in these reasons, require resolution at this time. However, I do note in that respect that the breast examination occurred after appropriate clinical examinations in relation to cardiac issues had revealed no cardiac cause for the chest pain. The breast examination was not accompanied by any type of other explicit sexual behaviour or inappropriate comments and is quite capable of being regarded as, albeit unorthodox and ultimately unfortunate, motivated by genuine clinical motives. My reading of the St Andrew’s internal review report suggests that those reviewers reached that very conclusion. I say that notwithstanding noting that there was a brief touching of Patient A’s leg on two occasions.
  2. [41]
    I note in this regard the reasons of the Board concerning the layout of the bed and examination room being such that there was no need for the applicant to reach over from behind Patient A to conduct the breast examination  and the submissions by the Board to similar effect. Having regard to the views expressed in the St Andrew’s internal review report on that matter, I do not place particular significance upon that factor.
  3. [42]
    In all the circumstances, I do not consider that the evidence is such as to base a reasonable belief that the applicant presents a serious risk to persons because of the risk that he might sexually assault a patient or otherwise breach appropriate professional boundaries. If I have not already made it clear, I do not consider that any of the other alleged deficiencies in the applicant’s practice are such, either by themselves or in combination with concerns as to the fact and circumstances of the breast examination, sufficient to base a reasonable belief as to a serious risk.
  4. [43]
    I do not reasonably believe that, because of the applicant’s conduct or performance, he poses a serious risk to persons within the meaning of section 156(1)(a)(i) of the National Law. In reaching that conclusion, I note that any risk that might be presented by the applicant has in any event been ameliorated by events subsequent to the alleged conduct. The applicant has suffered significant adverse consequences as a result of the immediate action taken by the Board. He is well aware that an investigation continues and is no doubt mindful that any failure on his part to adhere to proper professional standards would be of great interest to those investigating his conduct. I note that his employers are well aware of the nature of the allegations against him and are prepared to facilitate practice monitor arrangements  and I accept the evidence of the applicant himself that he will continue to adopt such measures.
  5. [44]
    In my view, the correct and preferrable decision is to order that the decision of the Medical Board of Australia of 18 February 2021 is set aside.

Footnotes

[1] Zaphir v Health Ombudsman [2017] QCAT 193 at [14].

[2]  Ibid at [15].

[3]  [2014] QCAT 701 at [20].

[4]  [2020] QCAT 316 at [31].

[5]  [2020] SACAT 67 at [67]-[70].

[6]  The applicant disputes that he was not wearing gloves during the course of the examination and that remains an unresolved factual dispute.

[7]  It appears that no records were made regarding the applicant concerning any of his dealings with the patient. The applicant explained that he was distracted by another patient and simply failed to make any records and frankly acknowledges his unsatisfactory failure to do so.

[8]  The Director of Emergency Care was female.

Close

Editorial Notes

  • Published Case Name:

    Rao v Medical Board of Australia

  • Shortened Case Name:

    Rao v Medical Board of Australia

  • MNC:

    [2021] QCAT 145

  • Court:

    QCAT

  • Judge(s):

    Allen QC

  • Date:

    06 May 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
LCK v Health Ombudsman [2020] QCAT 316
2 citations
Jump To
Cite 1 - [2020] QCAT 316
Cite 2 - [2020] QCAT 316
Oglesby v Nursing & Midwifery Board of Australia [2014] QCAT 701
2 citations
Jump To
Cite 1 - [2014] QCAT 701
Cite 2 - [2014] QCAT 701
Smith v Physiotherapy Board of Australia [2020] SACAT 67
2 citations
Jump To
Cite 1 - [2020] SACAT 67
Cite 2 - [2020] SACAT 67
Zaphir v Health Ombudsman [2017] QCAT 193
3 citations
Jump To
Cite 1 - [2017] QCAT 193
Cite 2 - [2017] QCAT 193
Cite 3 - [2017] QCAT 193

Cases Citing

Case NameFull CitationFrequency
NML v Medical Board of Australia [2021] QCAT 3441 citation
Rao v Medical Board of Australia (No 2) [2021] QCAT 3912 citations
Rosenbaum v Medical Board of Australia [2022] QCAT 1413 citations
YBCG v Health Ombudsman [2024] QCAT 5163 citations
1

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