Charge

From 23-25 August 2022 in Hamilton, the Health Practitioners Disciplinary Tribunal (the Tribunal) considered a charge of professional misconduct laid by a Professional Conduct Committee against Dr Nalendra Appana, a registered medical practitioner of Hamilton (the Doctor).

The Charge alleged is summarised below:

On various occasions, the Doctor blurred the boundaries between his personal life and professional practice by using his position as a medical practitioner in connection with his personal sexual practices, in particular;

1. On or around 15 May 2019, the Doctor provided health services and had sexual contact with Ms Y.
2. Between or around 15 May 2019 and 12 July 2019 the Doctor used his position and expertise as a medical practitioner in connection with his sexual relationship with Ms Y, in that he offered to provide/provided health services to Ms Y.
3. On or around 21 June 2019 the Doctor engaged in sexual activity with Ms Y at his medical practice.
4. The Doctor breached a patient’s privacy and/or professional obligations by sending Ms Y a picture of a patient in an operating theatre.
5. On or around 12 July 2019 the Doctor refused to delete all available video footage of sexual activity with Ms Y at her request.
6. Between on or around 12 July 2019 and 8 August 2020 the Doctor disclosed personal/health information about Ms Y to a reporter without her consent and/or at a time when a complaint was under consideration by a PCC.

The conduct summarised above either separately or cumulatively amount to professional misconduct in that it is conduct which is likely to bring discredit to the medical profession pursuant to section 100(1)(b) of the Act; and/or reflect adversely on the Doctor’s fitness to practise as a medical practitioner pursuant to section 100(1)(c) of the Act. 

A full copy of the charge can be found at Appendix A of the Tribunal’s decision.

Background

The Doctor and Ms Y met on an online dating website called ‘Seeking Arrangment’ and agreed to engage in sexual activity. The pair met on or around 15 May 2019, where the Doctor told Ms Y that prior to engaging in sexual activity he wanted her to undergo an STI test which she agreed to. The Doctor took Ms Y to his medical practice and performed an STI test on her, and while doing so ‘fingered’ Ms Y in a sexual manner. At this time the Doctor also undertook a visual examination of Ms Y’s cervix, commented on a perceived abnormality, and then offered to treat it. After completing the STI test on Ms Y, the Doctor engaged in sexual activity with Ms Y.

On other occasions where Ms Y and the Doctor would partake in sexual activities, the Doctor would film the interactions and specifically record Ms Y stating that she gave consent to the activities. It was when the Doctor refused to the delete these videos that Ms Y made a formal complaint to the Police.

Ms Y suffered from a chronic pain condition which fell under the expertise of the Doctor. He used this expertise in connection with a sexual relationship with Ms Y by telling her that he could help her with medical matters. This included offering to refer her to a pain clinic, telling Ms Y that he could prescribe her with anything she wanted, providing Ms Y with test results and medical advice, giving Ms Y a Class C controlled drug and asking Ms Y’s permission to obtain her clinical records. The nature of Dr Doctor’s position and Ms Y’s chronic health condition meant that there was a significant power imbalance, whereby Ms Y felt compelled to maintain the relationship for the purposes of health care.

On or around 21 July 2019, the Doctor sent Ms Y a photo of a female patient in the operating theatre post-operation after she had just given birth via emergency forceps. Ms Y thought this to be unusual and inappropriate, so she forwarded it to her nurse friend to see what she thought.

On or around 12 July 2019 and 8 August 2020, the Doctor disclosed the personal health information of Ms Y to a reporter from Stuff at a time when a complaint was under consideration by a Professional Conduct Committee. The reporter confirmed that the Doctor had told him he had conducted an STI swab on Ms Y and supplied her with a painkiller. The Doctor also provided the reporter with Ms Y’s phone number for contact.

Finding

Particulars 1, 2, 3, 5 and 6.  The Tribunal found the majority of the factual allegations to be true and that Ms Y was a credible witness. The Doctor provided a brief of evidence, but he did not give evidence before the Tribunal. This meant he was unable to be cross-examined and therefore his statements had to be treated with caution. On several occasions, the transition between clinical services and sexual contact was swift and seamless; to the extent that there was a blurring of the Doctor’s personal and professional life. This included the sexual activity in a clinical setting. The Tribunal also found that on the number of occasions where the Doctor gave Ms Y medical advice and provided her with a pain medication, that this was a blurring of boundaries.

Particular 4. As copy of the video and/or photo of an unknown female patient was not available. It was not clear that the patient was visible in the video. The Tribunal therefore did not find the sending of the photo to Ms Y as a breach of the patient’s privacy, although did consider it to be unprofessional. On its own, this did not amount to professional misconduct.

The Tribunal did not consider this charge a true case of breach of fiduciary relationship as the sexual relationship that arose directly from a doctor-patient relationship. However, the Doctor did provide medical care to someone with whom he had a close personal relationship.

In summary, particulars 1, 2 and 6 as detailed in the full charge were found individually to amount to professional misconduct.  Particulars 1, 2, 3, 4 and 5 cumulatively amount to professional misconduct.

Penalty

The Tribunal ordered:

• Censure (refer to Addendum to the Decision)
• Suspension of registration for three months,
• Conditions imposed on practice upon return,
• Payment of $79,296.62 being 45% of costs of the Tribunal and the PCC investigation.  

The Tribunal directed publication of the decision and a summary

An addendum to the Tribunal’s decision was issued following the issue of the full decision to amend a slip in the penalty section of the substantive decision to include a censure against the Doctor.