An appeal is underway for a Wellington region doctor found to have performed unjustified clinical breast examinations on patients.
He was found guilty last year by a Health Practitioners Disciplinary Tribunal, with complaints spanning from 2011 to 2017.
Included in the charge was the doctor's failure to record some breast examinations, asking a woman whether she knew she was very attractive and saying "for your age, they're [breasts] quite full" or words to that effect.
Today his lawyer outlined to the High Court at Wellington differing views regarding clinician breast examinations and spoke of concerns he held regarding some of the submissions in the original hearing.
He's appealing against both the Tribunal's decision and penalties, and the doctor's been allowed to keep working in the Lower North Island with his name secret due to the appeal.
Those penalties include a $5000 fine, the need for a chaperone during future breast examinations at his cost, as well as the $160,000 in costs that he was ordered to pay.
However, the man is also facing a cross-appeal from the Professional Conduct Committee (PCC) – with the aim of getting him suspended for a year.
Committee lawyer Anita Miller made the submission, stating they were cross-appealing against the Tribunal's decision not to suspend the doctor.
High Court documents obtained by the Herald show six reasons as to why the PCC believe the Tribunal was wrong in not imposing a period of suspension.
These include what the PCC said was "inadequate weight" given to the doctor's demonstrated continued lack of insight into his misconduct during the disciplinary process.
The PCC argued a period of suspension is necessary to protect the public by maintaining professional standards in the medical profession.
Today, his lawyer Donald Stevens told the court the man was highly regarded with many of his former patients, and "some said they felt a sense of empowerment as a result".
"There's only six or seven patients who did not like the approach that doctor [suppressed] took"
Stevens said the doctor took a preventative approach to his practice, and their submission is that the clinician was justified in raising breast health and in offering to perform breast examinations.
Clinician Breast Examinations (CBE) and Breast Self Examinations (BSE) are a focus in their argument, and the lawyer said while there are differing views on the effectiveness of BSE and CBE, they are not determinative one way or the other.
At the time, the Tribunal found the doctor continued to bring up the topic of breast health despite committing to "utterly avoid" it in a written undertaking to the health centre.
In regard to one of the patients, Stevens said adhering to this would have been in "direct conflict" with his duty to the patient.
On the topic of breast awareness, Stevens said the doctor took an orthodox view, however on CBE he took a minority view.
Notwithstanding Stevens said "It's not all that long ago that that was the conventional wisdom in New Zealand [advising clinician breast examinations]."
He said this continues to have it's own respective body of advocates internationally, so the approach the doctor took was not unsupported by other practitioners.
But Justice Robert Dobson said the man was the only one at the practice who did it and it was against what his superiors advised.
Dobson said it doesn't seem to him that the complainants got any of the background on the differing opinion on CBE.
Stevens conceded and noted that it could be said that the doctor should have explained to the patients that his view was this and there are different perspectives.
"Our submission is that that is an area that the doctor could be fairly criticised."
In spite of this, he said that the failure is not serious enough to amount to professional misconduct.
During the Tribunal last year eight women testified against the doctor, including one who said he told her that she had good-looking breasts.
Included in the charge was not offering a chaperone when conducting breast exams, raising breast health when not clinically justified and failing to record some breast examinations.
This afternoon Stevens agreed the doctor did not keep adequate notes, but on other issues questioned the credibility of some of the submissions from patients in the hearing, as he said some were testifying several years after the incident.
He claimed that due to inconsistencies with two of the witnesses the Tribunal could not conclude those women were credible.
Tomorrow the court will hear the more submissions from Stevens, and later the PCC will present its case.