Balasingham v Health Care Complaints Commission

1. [1]

   THE COURT: Dr Mohanadas Balasingham seeks leave to appeal from the decision of the Occupational Division of the NSW Civil and Administrative Tribunal finding him guilty of unsatisfactory professional conduct in respect of complaints one and two and professional misconduct in respect of complaint three on 28 November 2023, following a four-day “Stage 1” hearing earlier that month: Health Care Complaints Commission v Balasingham [2023] NSWCATOD 174. There has not as yet been a “Stage 2” hearing.

Background

1. [2]

   The application by the respondent Commission to the Tribunal contained three complaints, based on the applicant’s conduct concerning two patients, “Patient A” and “Patient B”. Nothing more need be said about Patient B because no part of the application for leave challenged any aspect of the findings concerning her.

2. [3]

   By way of overview, the Commission’s complaints insofar as they were based on Patient A all concerned a single consultation at the applicant’s practice in Western Sydney after 5pm on Saturday 5 September 2020. Patient A had never previously consulted the applicant. She attended his rooms accompanied by her partner, who waited in the waiting room. She had missed a period and had some abdominal cramps, and a pregnancy test administered at home had returned negative. There is no dispute that the applicant asked Patient A numerous inappropriate questions about her sexual history. She supplied a urine test which showed negative to pregnancy. Nonetheless, the applicant conducted a vaginal examination, with his hands, in circumstances where (so the Commission contended) there was no clinical justification, and for which he had not obtained any informed consent from his patient. Patient A also claimed, and the Commission alleged as complaint two, that during that examination, the applicant rubbed her clitoris and the outside of her vagina for five to six seconds. There were other aspects to the Commission’s application, but the foregoing were the most important.

3. [4]

   The applicant accepts that an appeal lies only with leave. That is at least because this is a “non-lawyer appeal” within the meaning of cl 29(4)(b) of Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW), and the proposed grounds of appeal are entirely factual. It is unnecessary for present purposes to address whether, if the grounds of appeal were confined to questions of law, nonetheless leave would still be required because the Tribunal’s decision is interlocutory within the meaning of cl 29(6)(a). The parties exchanged written submissions and a relatively brief oral hearing was conducted confined to the question of leave.

4. [5]

   The applicant’s draft notice of appeal contains five grounds. The third and fourth relate to a finding concerning whether he had discussed the question of a chaperone with Patient A, but it is not necessary for present purposes to address these in any detail. That is because (a) the Commission conceded in its written submissions supplied in advance of the hearing that there was an error of fact in one aspect of the reasons of the Tribunal concerning the chaperone, and (b) the applicant conceded that those grounds by themselves would not warrant a grant of leave. The concession was made with Mr Smark SC’s characteristic candour, and was a proper one to make. In the scheme of the adverse findings made by the Tribunal, the absence of a chaperone and whether or not the applicant had offered one is of relatively minor significance.

5. [6]

   The fifth proposed ground of appeal is wholly consequential, to the effect that, in relation to Patient A, the Tribunal had erred in making findings that the applicant was guilty of unsatisfactory professional conduct in respect of complaints one and two and professional misconduct in respect of complaint three.

6. [7]

   Accordingly, the parties’ oral submissions were concentrated on proposed grounds 1 and 2, which were as follows:

The Commission’s application to the Tribunal

1. [8]

   The Commission filed an application in the Tribunal on 27 March 2023. The first complaint contained four particulars, three of which relate to Patient A. Those particulars related to the applicant asking her inappropriate questions about her sexual history, performing a vaginal examination without her informed consent, without offering a chaperone and in circumstances where the examination was not clinically indicated, and failing to record in his consultation notes the diagnosis, the clinical reasons for the examination, her consent or whether she was offered a chaperone. The fourth particular concerned Patient B.

2. [9]

   The second complaint was that the applicant had:

3. [10]

   The third complaint was that, considered cumulatively, complaints one and two warranted a finding that the applicant was guilty of professional misconduct.

4. [11]

   It is not necessary to summarise the entirety of the evidence of Patient A. She made immediate complaint to her partner who had accompanied her to the consultation rooms. A formal statement made by her at Fairfield Police Station on Monday 7 September 2020 included the following:

5. [12]

   Both the applicant and Patient A were cross-examined before the Tribunal. Once again, it is not necessary to summarise their evidence in any detail. The applicant said that he was concerned that there might be an ectopic pregnancy, and said that any touching of Patient A’s clitoris was inadvertent. Because the findings of the Tribunal in relation to a majority of the particulars of the complaints were not the subject of challenge, it is unnecessary to summarise the evidence on which they were based.

The limited challenge by the applicant to the Tribunal’s decision

1. [13]

   There was no challenge to the Tribunal’s finding at [60]-[65] that the applicant was guilty of unsatisfactory professional conduct in relation to the first particular of the first complaint, namely, asking questions of Patient A’s sexual history.

2. [14]

   Nor was there any challenge to the finding that the applicant did not obtain informed consent before performing a vaginal examination in [66(a)] and [66(c)].

3. [15]

   Nor was there a challenge to the finding that the applicant’s records relating to the consultation by Patient A on 5 September fell significantly below the relevant standard and thus the Commission had established unsatisfactory professional conduct: at [67]-[70].

4. [16]

   Rather, attention was focussed upon an aspect of the finding in relation to particular two of the first complaint, concerning the appropriateness of the vaginal examination. The relevant aspect of the reasoning of the Tribunal was within [66(c)]:

5. [17]

   It was said in support of the grant of leave that the Tribunal’s reasoning materially misstated the evidence of Dr Jalota (the expert called by the Commission) following the conclusion of cross-examination.

6. [18]

   The evidence may be summarised as follows. Dr Jalota maintained that if an ectopic pregnancy was suspected, then a vaginal examination could neither confirm nor exclude the possibility, which could have extremely serious health consequences, and thus the appropriate course was to conduct an ultrasound. There was no such facility in the applicant’s practice and so Patient A should have been sent to the emergency department of a hospital.

7. [19]

   The passage of cross-examination upon which the applicant focussed was in substance a concession that although a vaginal examination could neither rule in nor rule out an ectopic pregnancy, it might shed light on that possibility which in turn might inform whether the patient should immediately attend at a hospital emergency department, or whether it might nonetheless be safe to delay for a short period. The cross-examiner drew attention to the fact that the consultation was after 5pm on a Saturday and that the emergency department might well be busy on a Saturday night, and elicited the following concession:

8. [20]

   On a fair reading of the cross-examination as whole, it seems probable that, in accordance with the submission made by Mr Chatterjee, who appeared both in the Tribunal and in this Court for the Commission, Dr Jalota was conceding that there might be clinical utility in conducting a vaginal examination, but only in circumstances where a medical practitioner also referred the patient to the emergency department or some other place where an ultrasound could be conducted. There was no suggestion that the applicant took that course. It follows that there was no material error in the reasoning of the Tribunal.

9. [21]

   Against this, Mr Smark pointed to the tenor of the cross-examination, and the indications that Dr Jalota regarded his answer to amount to a departure from the opinions expressed in his reports. Perhaps most importantly, there is the fact that the Tribunal’s reasons do not explain or otherwise address this aspect of Dr Jalota’s evidence.

10. [22]

    Accordingly, we are prepared to proceed, favourably to the applicant, on the basis that the point may be arguable. But the problem faced by the applicant who seeks a grant of leave is that more is required. And it is quite clear that success on this point does not undermine the findings of unsatisfactory professional conduct made in relation to other particulars within the Commission’s first complaint.

11. [23]

    The Tribunal also found that the second complaint was established. It was a very serious allegation, and was treated as such by the Tribunal. And in very large measure, this was a question of fact, which turned principally on the conflicting testimonial evidence of a patient who had made immediately detailed complaints and who was cross-examined before the Tribunal, and the applicant. It may be noted that senior counsel for the applicant acknowledged, once again entirely properly and appropriately, that the findings made by the Tribunal were at the very least findings which were likely to have been influenced by demeanour.

12. [24]

    In light of the submissions advanced in support of the grant of leave, it is appropriate to reproduce the entirety of paragraphs [94]-[97], despite their length, where the Tribunal addressed that issue. In what follows, 12 words in [94(4)] have been emphasised:

13. [25]

    No challenge was made to the very large majority of the Tribunal’s reasoning. Instead, the point was made that what was said to have been the finding of fact concerning the objective clinical need for the vaginal examination was, explicitly, relied upon in the reasoning process by which the Tribunal found itself comfortably satisfied that the second complaint was established. Thus attention was focussed upon one clause within [94(4)], which has been emphasised above.

14. [26]

    It is true that one component of the Tribunal’s ultimate conclusion that the second complaint was made out relied on the “general lack of an objective clinical need for the vaginal examination” (the words emphasised in the passage above), and thus it cannot be said that the case outlined above, based on the concession elicited from Dr Jalota, is one which is wholly independent of the reasons leading to the establishment of the second complaint.

15. [27]

    But the reality of the position is that it has not been shown that that error alone, assuming favourably to the applicant that there was an error in relation to the evidence of Dr Jalota, undermines the finding that this complaint was made out. First and foremost, this was a matter which turned primarily on the evidence of Patient A and the applicant. Moreover, as will be seen from [94] and [95], there was a great deal of other considerations which contributed to the Tribunal’s conclusion, none of which is suggested to be erroneous.

16. [28]

    Even if an error were established in relation to that aspect of the findings of fact, that would not be sufficient to warrant intervention by this Court. In order to obtain an order allowing the appeal, setting aside the decision of the Tribunal and ordering a rehearing before the Tribunal, it would remain necessary to establish that “some substantial wrong or miscarriage has been thereby occasioned”: Uniform Civil Procedure Rules 2005 (NSW), r 51.53. This Court does not intervene to correct immaterial error. Thus the essential difficulty for the applicant is that, taking his case at its highest, he has established an arguable case of error in respect of a relatively minor error in one aspect of reasoning. That falls well short of establishing a case for some substantial wrong or miscarriage.

Conclusion and orders

1. [29]

   For those reasons, this is not an appropriate case for the grant of leave. The orders of the Court will be: Summons seeking leave to appeal filed 28 February 2024 dismissed with costs.