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Breast exam misconduct case to be reheard

A Sydney ophthalmologist who admitted conducting an inappropriate breast exam on a teenage patient will be back facing professional misconduct allegations in front of a state tribunal.

In December 2017, Dr David Isaac Matzner Robinson first consulted a 19-year-old patient who had complained about pressure in her right eye.

After asking her to remove her singlet top, he conducted a breast exam, using massage and a stethoscope, and massaged her abdomen. He asked if she was on her period, her breasts were tender and she had previously had a Pap smear.

In September 2021, the NSW Civil and Administrative Tribunal found there were insufficient clinical reasons for the breast examination and that the doctor did not give the patient enough information to have her informed consent.

However, the tribunal could not make the further finding that there was no medical reason at all for either the breast or abdominal examination.

Dr Robinson conceded that his conduct was “inappropriate” but denied he did anything improper or unethical.

NCAT ruled he was guilty of unsatisfactory professional conduct but declined to make the more serious finding that his behaviour was professional misconduct.

The Health Care Complaints Commission, in bringing the case in April 2020, argued the examinations were “inappropriate conduct of a sexual nature” and that findings of professional misconduct should be made.

It did not matter what Dr Robinson’s actual motivations were, the commission said, because a woman’s breasts were inherently sexual anyway.

In failing to make the professional misconduct findings, NCAT found the ophthalmologist’s conduct did not have a sexual purpose, saying it fell “slightly short” of meeting the criteria of professional misconduct.

On Friday, the NSW Court of Appeal overruled this, saying tribunal members had misunderstood the HCCC’s case regarding the allegedly sexual nature of the examinations.

Acting Justice Carolyn Simpson, supported by the other two appeal judges, found the tribunal members had erred by tying Dr Robinson’s motivation, sexual or otherwise, to whether the examinations were inappropriate sexual conduct.

“Notwithstanding the commission’s express distancing of itself from an allegation of sexual motivation, the tribunal addressed the question of sexual motivation in terms that indicated that its inability to find such a motivation was dispositive of the commission’s argument,” the acting judge wrote.

The commission lost two other grounds of appeal, namely that the tribunal failed to consider the impact on public confidence in the medical profession and the reasonableness of the doctor’s views that there were proper reasons for the examinations.

Neither topic had been properly discussed by the HCCC in its submissions to NCAT, the appeals court found.

The matter has now been sent back to the tribunal for a fresh hearing.

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