Health Care Complaints Commission v Benness [2024] NSWCATOD 27

Health Care Complaints Commission v Benness [2024] NSWCATOD 27

Dr Benness’s touching of Patient A and Patient C’s breasts without informed consent and without a proper clinical reason during medical consultation and examination fell significantly below the standard reasonably expected of a medical practitioner of his training and experience, thereby constituting unsatisfactory professional conduct. However, his actions did not amount to improper or unethical conduct nor sufficiently serious to justify suspension or cancellation of registration (professional misconduct).

Parties
Applicant: Health Care Complaints Commission; Respondent: Christopher Benness
Jurisdiction
Australia
Judgment Date
15 March 2024
Procedural Posture
Professional Disciplinary Proceedings / Determination of Liability, With Hearing on Protective Orders Adjourned
Outcome
Practitioner found guilty of unsatisfactory professional conduct; not professional misconduct. Orders on protective measures deferred pending further hearing.
Legal Topics
Unsatisfactory Professional Conduct, Informed Consent, Medical Examination Standards, Ethical Conduct of Medical Practitioners
Health Law Professional Discipline Unsatisfactory Professional Conduct Informed Consent Medical Examination Standards Ethical Conduct of Medical Practitioners

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Parties

Health Care Complaints Commission

Applicant

Christopher Benness

Respondent

Procedural Posture

Professional Disciplinary Proceedings / Determination of Liability, With Hearing on Protective Orders Adjourned

Legal Issues

  1. 1 Whether Dr Benness engaged in unsatisfactory professional conduct by touching patients' breasts without consent and clinical reason
  2. 2 Whether there was adequate informed consent for examinations
  3. 3 Whether the established conduct amounted to improper or unethical conduct

Ratio Decidendi

Dr Benness’s touching of Patient A and Patient C’s breasts without informed consent and without a proper clinical reason during medical consultation and examination fell significantly below the standard reasonably expected of a medical practitioner of his training and experience, thereby constituting unsatisfactory professional conduct. However, his actions did not amount to improper or unethical conduct nor sufficiently serious to justify suspension or cancellation of registration (professional misconduct).

Court Disposition

Practitioner found guilty of unsatisfactory professional conduct; not professional misconduct. Orders on protective measures deferred pending further hearing.

Orders

  • Pursuant to s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW), the Practitioner, Dr Christopher Benness, is guilty of unsatisfactory professional conduct.
  • The proceedings are to be listed for hearing to determine the orders which are necessary to protect the health and safety of the public. The parties are to prepare and deliver to the Registrar within 7 days of these orders an agreed minute of proposed directions for the completion of the matter, following which a...