Lawyer begins cross-appeal for doctor found guilty of doing unjustified breast exams

The case is being heard in the High Court at Wellington. Photo / 123RF

Lawyers fighting for a tougher penalty for a Wellington region doctor found to have performed unjustified clinical breast examinations say his punishment didn't fit the severity of the incidents.

He was found guilty last year by a Health Practitioners Disciplinary Tribunal, with complaints spanning from 2011 to 2017.

The man's appealing against the decision but is also facing a cross-appeal, with the aim of getting him suspended for a year.

Professional Conduct Committee (PCC) lawyer Harriet Goodhew said while the seriousness of his actions was evident in the Tribunal's decision – this was not reflected in the penalties.

Those 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.

She said the man had an "I know what's best for you" approach, which she said failed to consider each patient's dignity.

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.

The cross-appeal was filed after the man entered an appeal 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.

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.

The PCC argued a period of suspension is necessary to protect the public by maintaining professional standards in the medical profession.

Goodhew said it was odd that the Tribunal noted in it's decision that there would be no "further" suspension period issued, when she said there had never been one in the first place.

At the time, Tribunal chairman David Carden emphasised normally a Tribunal would impose a suspension for this level of misconduct, however the doctor had already spent 13 months off work.

The PCC also claimed that it was clear from the evidence that he had not used the time off work to reflect on his practice, and back then it was plain that he didn't understand why it was so upsetting to the patients.

However, the doctor's lawyer Donald Stevens said the doctor approached some practices for work and would have been offered it had there not been limiting work conditions imposed on him.

He said the man was deeply upset after finding out about the complaints and even wrote letters to some of the patients.

Earlier in the week, 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".

He 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.

The PCC said it did not advance the situation as sexually motivated, however it went beyond a practitioner performing an unnecessary examinations on other body parts.

"There was a sexual component, so the PCC says that despite the lack of sexual motivation, there is still an obvious disregard for the fact that these are sexual subjects. The breasts are a sexual organ."

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.

Tomorrow the court will hear more submissions from the PCC.