A doctor who had sex with a woman patient at his clinic said it was consensual. She accused him of rape. The Medical Council tried to suspend the doctor. Photo / Getty Images
A doctor who had sex with a woman patient at his clinic said it was consensual. She accused him of rape. The Medical Council tried to suspend the doctor. Photo / Getty Images
Doctors accused of rape or inappropriate sexual contact have been allowed to continue practicing by circumventing Medical Council action, through successful appeals to the district court.
In September 2017 a patient claimed an Auckland GP raped her during a visit to his clinic.
According to a district court decision by Judge Gary Harrison, the woman immediately locked herself in the doctor's surgery, demanded $150,000 be paid into her bank account and passed the number on a piece of paper under the door.
The police were called and the doctor, who has name suppression, was taken to the police station for questioning. He admitted having sex with the woman but said it was consensual.
Police searched his practice the next day and seized his cellphone, later finding text messages with two female patients they considered suspicious.
The doctor, who speaks to many of his patients in their native language, voluntarily undertook to have a chaperone present for all female patient consultations.
A second complaint about him was raised a month later by a psychiatrist who reported a patient said her GP tried to kiss her and when she told her mother and sister, the doctor said it was the patient who "propositioned him, offering him sex for money".
The alleged incident had taken place two or three years earlier, according to the decision.
A third complaint related to the suspicious text messages, where two patients were visiting the doctor after hours, waiting in the carpark until all patients had gone.
One of the patients told police during a "counselling" session with the doctor at one of these after hours visits, he asked her for sex but she declined.
She later corrected her statement to say the doctor was asking about her sex life, whether or not she was "having sex", and that she did not have any contact with the doctor between making her initial statement and changing it.
Victim advocate Louise Nicholas believes Medical Council action to suspend or restrict doctors accused of sexual inappropriateness is problematic. Photo / Mark Mitchell
The Medical Council referred to the case to its professional conduct committee to investigate whether it could pursue charges, and sought to temporarily suspend the doctor's registration.
The doctor's lawyers filed an "interim stay" to halt the suspension while an appeal was heard.
In the appeal decision, Judge Harrison found the suspension could not stand because the situation had changed, in that police did not lay charges so no criminal activity could be taken into account.
In a second case, a woman claimed an accident and emergency doctor grabbed and squeezed her breast during an examination of a sore shoulder.
The Medical Council referred the complaint to the Health and Disability Commissioner, its own complaints triage team and requested the doctor have a chaperone present for all female consultations.
The doctor, who said he had no memory of the consultation and denied the allegation, said this was unreasonable because of the cost and logistical difficulty of doing so.
He appealed and Judge Harrison found in his favour, saying the condition was not fair, reasonable or proportionate to the complaint.
This was backed up by the doctor's medical colleagues who were unanimous in their view he posed no risk to the public.
Instead the doctor must have a chaperone for unaccompanied patients under the age of 16, and all breast, rectal and pelvic exams on women.
Earlier this year, a requirement for the council to notify a doctor it intended to suspend them and seek a response was replaced with laws allowing the council to suspend without notification.
Victim advocate Louise Nicholas said if the Medical Council had concerns with a doctor it should be an alarm bell.
"I think it's absolutely disgusting that doctors can appeal that through the courts. If the Medical Council have got concerns then that should be a massive red flag."
