Health Care Complaints Commission v Dowla [2019] NSWCATOD 117

Health Care Complaints Commission v Dowla [2019] NSWCATOD 117

The Tribunal was not satisfied to the Briginshaw standard that the allegations of inappropriate sexual touching, masturbation, or asking personal questions while masturbating were established. Patient A's prompt complaints were considered, but discrepancies in her accounts, her vulnerabilities, the absence of a full...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
26 July 2019
Procedural Posture
Health Practitioner Disciplinary Complaint / Stage 1 Liability Hearing Conducted as a Fresh Hearing After Reconstitution of the Tribunal; Stage 2 Listed for Directions
Outcome
The practitioner was found guilty of unsatisfactory professional conduct in respect of giving his mobile telephone number to Patient A; the allegations of inappropriate sexual behaviour and professional misconduct were not established. The matter was listed for directions for Stage 2.
Legal Topics
['unsatisfactory Professional Conduct' 'professional Misconduct' 'alleged Inappropriate Conduct of a Sexual Nature During Medical Examination' 'professional Boundaries' 'briginshaw Standard of Proof' 'medical Examination Consent and Modesty']
['health Practitioner Regulation' 'professional Discipline' 'administrative Law'] ['unsatisfactory Professional Conduct' 'professional Misconduct' 'alleged Inappropriate Conduct of a Sexual Nature During Medical Examination' 'professional Boundaries' 'briginshaw Standard of Proof' 'medical Examination Consent and Modesty']

Source-derived case record

Summary, issues, holding and outcome

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Procedural Posture

Health Practitioner Disciplinary Complaint / Stage 1 Liability Hearing Conducted as a Fresh Hearing After Reconstitution of the Tribunal; Stage 2 Listed for Directions

Legal Issues

  1. 1 ['Whether the practitioner engaged in inappropriate conduct of a sexual nature during examination of Patient A by touching her vulva or thighs without consent or clinical indication.' 'Whether the practitioner masturbated under the desk while speaking with Patient A and asked personal questions while doing so.' 'Whether giving Patient A his mobile telephone number and asking her to contact him about a mobile phone application breached appropriate professional boundaries.' 'Whether any established conduct amounted to unsatisfactory professional conduct or professional misconduct under the Health Practitioner Regulation National Law (NSW).']

Ratio Decidendi

The Tribunal was not satisfied to the Briginshaw standard that the allegations of inappropriate sexual touching, masturbation, or asking personal questions while masturbating were established. Patient A's prompt complaints were considered, but discrepancies in her accounts, her vulnerabilities, the absence of a full explanation of the examination, and the credible evidence of the practitioner led the Tribunal to find that she likely misinterpreted the clinical examination. The Tribunal found that the practitioner did give Patient A his mobile telephone number for a non-medical purpose related to an app, which was abnormal or irregular conduct in the practice of medicine and therefore...

Court Disposition

The practitioner was found guilty of unsatisfactory professional conduct in respect of giving his mobile telephone number to Patient A; the allegations of inappropriate sexual behaviour and professional misconduct were not established. The matter was listed for directions for Stage 2.

Orders

  • ['The proceedings are listed for directions in respect of the conduct of Stage 2 of the matter on 16 August 2019 at 9.30am.']