By Sahar Adatia and Jimmy Singh.
“Yes, I do like sex, but I am not interested in any relationship.”
These were the words allegedly uttered from gynaecologist, Dr Bhupendra Khara, following a vaginal examination of a patient in 2016, along with, allegedly, an invitation to have dinner at his home (https://www.sbs.com.au/yourlanguage/hindi/en/article/2018/11/21/gynaecologist-fined-after-calling-patient-pretty-and-inviting-her-home).
It is reported that these were the words that also landed him a $5,000 fine for unprofessional conduct.
Dr. Khara has been practising as a gynaecologist and a consultant obstetrician for 38 years.
However, on November 21, 2018, Dr Khara’s unprofessional conduct eventually caught up with him.
Dr Khara Performs Vaginal Examination on “Petite and Pretty” Girl
In April 2016, Dr Khara assessed a female patient at the Royal Darwin Hospital after her GP referred her for investigation following lower abdominal pain connected to menstrual periods.
The patient, referred to as “HC”, had not previously been examined by a male gynaecologist and so was surprised when she discovered she was referred to a male specialist.
Dr Khara performed a vaginal examination and took a swab from the female. During this time, a nurse was present. However, following the examination, the nurse left.
It is alleged that it was after HC dressed into her clothes that the doctor said to her, “you are petite and pretty”, and then later in the conversation admitted that he does enjoy sex, however, was not interested in a relationship.
Four days later, despite the patient’s swab test not yet being analysed, Dr Khara took it upon himself to phone HC, asking, “How is the pretty girl doing?” before eventually inviting her to his home for dinner.
Northern Territory’s Civil and Administrative Tribunal (NTCAT) Hands Down Findings of Dr Khara’s Conduct
At Dr Khara’s hearing, reportedly, it was maintained that the gynaecologist called his patient directly – contrary to his usual practice – because he was concerned she might have a sexually transmitted infection. However, the tribunal found that he did not mention any such suspicion to her, nor did he discuss safe sex practices with her.
Similarly, while the doctor insisted he instead referred to HC being “petite and pretty – like my daughter”, the patient denied the gynaecologist made any such reference to his daughter during the consultation.
Meanwhile, the doctor also offered no plausible explanation for the dinner invitation.
To this, it was ruled that the invitation “involved a complete failure on his part to maintain the professional distance, dispassion and trust that is so fundamental to doctor-patient relationships.”
All in all, the NTCAT found Dr Khara’s evidence unsatisfactory and deliberately evasive (https://www.abc.net.au/news/2018-11-21/doctor-patient-dinner-pretty-petite-vaginal-exam-fined-keeps-job/10515716), and his conduct violating the boundaries that must be maintained in the medical realm.
“It is clear that the admitted conduct involved violations of the well-established and well-understood boundaries that must be maintained between health practitioners and their patients,” the tribunal found.
It was also noted that the comment about HC’s appearance and the discussion about sex “would have been inappropriate and unprofessional in the context of any doctor and patient consultation; however, it was all the more troubling in a context where he had just carried out an intimate examination of her.”
The NTCAT also outlined that there was no hesitation in accepting HC’s evidence that the conversation about sex left her feeling extremely uncomfortable and that she had no wish, following the consultation that day, to ever be seen by the respondent again.
Dr. Khara To Keep Job but Fined $5,000 For Unprofessional Conduct
The tribunal ruled that Dr Khara’s conduct was worthy of reprimand, however, it did not believe that re-education, the use of a chaperone, or a condition to be mentored would achieve “any useful purpose”. As such, it was found that there was no evidence that the behaviour was part of a pattern.
“We approach those events on the basis that they represented an isolated occasion on which the respondent allowed temptation to cloud his better judgment,” it ruled.
Dr Khara was allowed to keep his job and instead ordered to pay a fine of $5,000 to the Medical Board of Australia for unprofessional conduct.
Meanwhile, a spokesperson for the Top End Health Service noted that as soon as the complaint was reported, Dr Khara was immediately removed from unsupervised clinical duties, his locum contract was further terminated, and the incident reported to the Australian Health Practitioner Regulation Agency (AHPRA) for further investigation.
Dr Khara was relocated after the incident, and is now listed as an obstetric and gynaecological practitioner in Victoria.
Understanding the Health Practitioner Regulation National Law (NSW)
The Medical Board of Australia advises that in NSW, it is required that registered health practitioners, employers and education providers are to report ‘notifiable conduct’ to AHPRA (or the relevant authority in a co-regulatory jurisdiction), to prevent the public being placed at risk of harm.
In NSW, this is administered under the Health Practitioner Regulation National Law (http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/hprnl460/), which is in place to protect the health and safety of the public. Under the legislation, this is the guiding principle and must be the paramount consideration.
The Law on ‘Notifiable Conduct’ in NSW
In NSW, the law on ‘notifiable conduct’ is outlined in Section 140 (http://classic.austlii.edu.au/au/legis/nsw/consol_act/hprnl460/s140.html) of the Health Practitioner Regulation National Law.
As the Medical Board of Australia (https://www.medicalboard.gov.au/Codes-Guidelines-Policies/Sexual-boundaries-guidelines.aspx) advises, ‘notifiable conduct’ includes engaging in sexual misconduct in connection with the practice of the profession. This means engaging in sexual misconduct with individuals under a doctor’s care or linked to a doctor’s practice of their profession.
The objective of the mandatory notification requirement is to prevent the public being placed at risk of harm. The law requires health practitioners to notify AHPRA (or the relevant authority in a co-regulatory jurisdiction) if they believe that another health practitioner has behaved in a way which presents a serious risk to the public.
Health practitioners also have a professional and ethical obligation to protect and promote public health and safety and may therefore make a voluntary notification.
Sexual Touching Offences in NSW (https://www.criminaldefencelawyers.com.au/blog/what-is-the-law-and-penalties-for-sexual-touching-in-nsw/)
Sexual touching is a crime in NSW carrying penalties of up to 5-years imprisonment with a criminal conviction under section 61KC Crimes Act 1900 (NSW).
A person guilty of sexual touching will receive a criminal record as a sexual offence unless the Magistrate is convinced to impose a non-conviction type penalty even after a plea of guilty is entered or after a court returns a guilty verdict.
A non-conviction type penalty includes a section 10 dismissal or non-conviction Conditional Release Order (https://www.criminaldefencelawyers.com.au/criminal-law/penalties/nsw/conditional-release-order/).
A person will be guilty of sexual touching if:
- The accused touched the alleged victim; and
- A reasonable person would consider that to be ‘sexual’ after a consideration of:
- The circumstances and aspects of the touching that has the flavour of being sexual
- Whether it was for sexual gratification; and
- The part(s) of the body touched or used to do the touching.; and
- The alleged victim did not consent to it; and
- The accused person knew that the alleged victim was not consenting to it.
It is a defence to a sexual touching charge, which will result in an acquittal if:
- The touching was done for a genuine medical or hygienic purpose; or
- The accused held an honest belief, held on reasonable grounds, that the alleged victim was consenting to the sexual touching; or
- The touching occurred incidentally in the course of ordinary exigencies of everyday life; or
- The touching isn’t regarded as ‘sexual’ by a reasonable person point of view; or
- The conduct of touching by the accused was involuntary due to a recognised condition, such as epilepsy.
While in the case of the gynaecologist, there appears to be a valid defence of touching the patient for a genuine medical reason (vaginal examination) with the patient’s consent, a combination of the area touched, the words uttered by the gynaecologist, and his invitation to have dinner at his home, arguably gives the flavour of sexual touching, not for a genuine medical reason- in light of the delay in having the swab tests analysed.
Ordinarily, if sexual touching occurs in the context of a doctor/patient relationship, the law considers it as an aggravating factor. An aggravating factor increases the seriousness of the conduct which generally attracts a heavier penalty on a sentence in court.