Health Care Complaints Commission v Cusi [2018] NSWCATOD 83

Health Care Complaints Commission v Cusi [2018] NSWCATOD 83

The practitioner failed to provide adequate explanation and informed consent for examinations and manipulative treatment, particularly when moving from expected pelvic assessment to rib cage and thoracic spine procedures involving intimate areas, and failed to provide adequate privacy and clothing to Patient A....

Source-derived case information.

Jurisdiction
Australia
Judgment Date
01 June 2018
Procedural Posture
Application for Disciplinary Findings and Orders Concerning a Medical Practitioner / Principal Judgment After Hearing
Outcome
The Tribunal found that the practitioner engaged in unsatisfactory professional conduct within the meaning of ss 139B(1)(a) and (l) of the Health Practitioner Regulation National Law (NSW).
Legal Topics
['unsatisfactory Professional Conduct' 'professional Misconduct' 'informed Consent' 'patient Privacy and Modesty' 'alleged Sexual Misconduct by Medical Practitioner' 'standard of Proof in Disciplinary Proceedings']
['health Practitioner Regulation' 'professional Discipline' 'medical Law'] ['unsatisfactory Professional Conduct' 'professional Misconduct' 'informed Consent' 'patient Privacy and Modesty' 'alleged Sexual Misconduct by Medical Practitioner' 'standard of Proof in Disciplinary Proceedings']

Source-derived case record

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Procedural Posture

Application for Disciplinary Findings and Orders Concerning a Medical Practitioner / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the practitioner failed to provide appropriate explanations and obtain informed consent from Patient A before requiring clothing adjustments and conducting examinations.' 'Whether the practitioner failed to provide adequate privacy to Patient A by not providing shorts or a gown and not leaving the room while she removed her pants.' 'Whether alleged rubbing, positioning, breast touching, or other contact with Patient A occurred as alleged and was sexual in nature.' 'Whether the practitioner failed to provide appropriate explanation and obtain informed consent from Patient B before palpating the pubic/groin area and performing rib or thoracic manoeuvres involving contact close to breast tissue.' 'Whether the proven conduct amounted to unsatisfactory professional conduct under ss 139B(1)(a) and (l) of the Health Practitioner Regulation National Law (NSW) and/or professional misconduct under s 139E.']

Ratio Decidendi

The practitioner failed to provide adequate explanation and informed consent for examinations and manipulative treatment, particularly when moving from expected pelvic assessment to rib cage and thoracic spine procedures involving intimate areas, and failed to provide adequate privacy and clothing to Patient A. Although sexual intent and several specific allegations of sexual touching were not established to the requisite standard, the proven failures breached patient trust and were significantly below the standard reasonably expected of a practitioner of equivalent training or experience, amounting to unsatisfactory professional conduct under ss 139B(1)(a) and (l) of the Health...

Court Disposition

The Tribunal found that the practitioner engaged in unsatisfactory professional conduct within the meaning of ss 139B(1)(a) and (l) of the Health Practitioner Regulation National Law (NSW).

Orders

  • ['The Tribunal finds that the practitioner has engaged in unsatisfactory professional conduct within the meaning of ss 139B(1)(a) and (l) of the Health Practitioner Regulation National Law (NSW) by reason of the findings proven above.']