Health Care Complaints Commission v Balasingham [2023] NSWCATOD 174

Procedural Posture

Occupational Discipline Application Concerning a Medical Practitioner / Stage 1 Hearing to Determine Whether Particulars of Complaints One and Two Were Established and Whether Dr Balasingham Was Guilty of Professional Misconduct in Complaint Three; Stage 2 Protective Orders to Follow

Legal Issues

1. 1 ['Whether Dr Balasingham asked Patient A inappropriate questions about her sexual history during the consultation on 5 September 2020.' 'Whether Dr Balasingham performed a vaginal examination on Patient A without informed consent, without offering a chaperone, and when it was not clinically indicated.' 'Whether Dr Balasingham failed to make adequate consultation notes for Patient A, including diagnosis, clinical reasons for pelvic examination, consent and chaperone matters.' "Whether Dr Balasingham failed to appropriately monitor and document Patient B's medication regime involving mirtazapine, temazepam and diazepam." "Whether Dr Balasingham rubbed Patient A's clitoris and outside of her vagina for approximately 5-6 seconds and whether that was improper or unethical conduct." 'Whether the established unsatisfactory professional conduct was sufficiently serious to amount to professional misconduct under s 139E of the Health Practitioner Regulation National Law (NSW).']

Ratio Decidendi

The Tribunal preferred Patient A's evidence over Dr Balasingham's where their accounts conflicted, because Patient A's accounts were essentially consistent and supported by her immediate complaint, while Dr Balasingham's evidence contained significant inconsistencies about the sexual history, contraception, possible ectopic pregnancy, chaperone, workload, abdominal pain and informed consent. The Tribunal found the inappropriate sexual history questions, the vaginal examination without informed consent or a chaperone and without sufficient clinical indication, inadequate records for Patient A, and inadequate monitoring and documentation of Patient B's medication regime each fell...

Court Disposition

Complaints One and Two established as unsatisfactory professional conduct; Complaint Three established as professional misconduct; proceeding listed for Stage 2 directions.

Orders

• ['Dr Balasingham is guilty of unsatisfactory professional conduct in respect of Complaints One and Two.' 'Dr Balasingham is guilty of professional misconduct in respect of Complaint Three.' 'The proceedings are listed for directions in respect of the conduct of the Stage 2 hearing at a date to be determined by the...