The Health Care Complaints Commission (HCCC) prosecuted a complaint against Dr Robinson, a registered ophthalmologist, following his treatment and care of a 19 year old female patient in the NSW Civil and Administrative Tribunal (the Tribunal).
The patient was referred by her GP for review following a 12 month period of painful eye pressure.
It was alleged that Dr Robinson:
- conducted an inappropriate chest, breast and abdomen examination;
- did not record that he had conducted a breast examination;
- asked the patient inappropriate questions about her menstrual cycle and whether she had ever had a pap smear.
On 14 September 2021, the Tribunal found that Dr Robinson was guilty of unsatisfactory professional conduct, but not professional misconduct.
On 26 August 2022 the NSW Court of Appeal allowed an appeal against the Tribunal’s decision.
Leaving aside the legal technicalities involving the right to appeal, the Court held that the Tribunal failed to exercise its jurisdiction and erred in law. The Tribunal failed to address the HCCC’s submission that Dr Robinson’s conduct was inappropriate and sexual in nature because breasts are intrinsically sexual. This submission did not include a suggestion that the conduct was sexually motivated. The Tribunal had equated inappropriate conduct of a sexual nature with conduct that is sexually motivated and in doing so, had not fairly and squarely addressed the submission articulated by the HCCC.
The matter was remitted back to the Tribunal to reconsider the HCCC’s Application for Disciplinary Findings. Dr Robinson was also ordered to pay the HCCC’s costs.
The decision raises the question – when will a health practitioner’s conduct be found to constitute professional misconduct? The Tribunal must now determine whether a practitioner who examined a patient’s breasts without there being a valid indication to do so, but also without a sexual motivation, committed professional misconduct.
Watch this space.
Health Care Complaints Commission v Robinson – NSW Caselaw
https://www.hccc.nsw.gov.au/decisions-orders/media-releases/2021/dr-david-robinson-ophthalmologist-unsatisfactory-professional-conduct
