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Conduct: Patient examination under anaesthesia.


Health Care Complaints Commission v McKay [2022] NSWCATOD 95 (on Caselaw).

Following a finding of professional misconduct, the registration of the defendant medical practitioner (a colorectal surgeon) was suspended for three months. The professional misconduct finding arose from three related complaints.

Firstly, during the course of a colonoscopy the practitioner invited another person (the anaesthetist) to conduct a digital rectal examination of patient A while patient A was under anaesthesia and without his knowledge or proper informed consent and without a valid clinical reason (and when that occurred he took a non clincial photograph of the examination).

Secondly, that the defendant provided false and/or misleading information during the Mater Hospital investigation, when he denied that he had taken a photograph of Dr Hill conducting a digital rectal examination of patient A.

Thirdly, that he later made a telephone call to patient A to try to influence the patient to influence patient A in respect of possible criminal charges.

The Tribunal commented at [64]:

In our opinion this cannot be simply described as a jocular incident in an operating theatre. At the invitation of Dr McKay, Dr Hill inserted his fingers into the rectum of patient A. Patient A was unconscious. Patient A had not consented to the examination. Dr McKay took photographs of patient A while he was in this state. He joked about whether he would send the photographs to other doctors. We agree with the description used by counsel for the Health Care Complaints Commission – patient A was being used as a prop for a joke. We consider this a very serious and significant departure from the standard expected of a medical practitioner. We also consider Dr McKay’s failure to openly disclose what he had done, firstly to his employer and then to patient A, to be a very serious departure from the conduct expected of a medical practitioner. As Dr McKay conceded, he did this out of self-interest because he was concerned at the possible consequences, including the loss of his job and criminal charges.

[BillMaddensWordpress #2024]


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