Dr Naylin Appanna's three month suspension for professional misconduct is a failure by regulators to protect women, another gynaecologist says. Photo / Facebook
Dr Naylin Appanna's three month suspension for professional misconduct is a failure by regulators to protect women, another gynaecologist says. Photo / Facebook
WARNING: This story deals with sexual harm and may be upsetting.
The suspension of a “sugar daddy” gynaecologist for three months after he performed a sexually transmitted infection test on a young woman during a date is causing disquiet among some doctors, with one saying they believe regulators have failed the public.
The sentiment is backed up by the head of a sexual harm education service who says she will contact regulators to offer education around consent.
It comes after Justice Minister Kiri Allan last year said she was seeking advice on New Zealand’s consent laws following urgent calls for reform.
But an expert in sexual misconduct by doctors said health authorities were hamstrung by a weak regulatory framework, particularly compared to Australia, and called for laws to better protect the public.
Some doctors are now questioning the appropriateness of the short suspension and whether Appanna should have been struck off.
A gynaecologist, who did not want to be named, said the professional bodies of doctors regularly informed them against crossing boundaries with patients.
“This did not appear to be one of those situations. Perhaps if it was such a case, suspension would be enough.
“But this kind of case should attract cancellation in my view, because it wasn’t an inappropriate relationship that began in the context of a physician-patient relationship.”
The gynaecologist said Appanna found a vulnerable woman online and later gave her drugs.
“In my view, this is the behaviour of a predator, not a physician.”
“In my opinion, a doctor who accepts the facts of this case could not be happy to claim such a person as a colleague.
“He would not be someone you’d trust looking after your family member.
“I think that our regulators have failed in their role of upholding the reputation of the profession here. I would understand if women lost trust in our profession too.”
Dr Naylin Appanna and his wife Sandie. The doctor showed no evidence of remorse or insight into his conduct, a tribunal said. Photo / Facebook
Appanna’s suspension was ordered by the Health Practitioners Disciplinary Tribunal [HPDT] late last year.
In its decision the tribunal said the blurring of boundaries was not sufficiently serious to warrant cancellation.
The tribunal did not compare Appanna’s conduct with previous cases of practitioners in sexual relationships with patients, saying these were unhelpful because Appanna’s relationship with the woman known as Ms J began through an online dating app.
Instead, it compared his conduct to cases where a practitioner had treated someone they were close to.
In the example of Dr E, who prescribed his de facto partner antidepressant medication 30 times, the tribunal said Appanna’s case was somewhat more serious because:
An STI was an invasive procedure;
Taking the STI swab, a health service, overlapped with the sexual conduct;
The STI test was for Appanna’s benefit;
He gave Ms J a sedation drug for “pain relief” with no monitoring and without the situation being an emergency;
He breached Ms J’s confidentiality by giving her phone number to a reporter;
And he sent Ms J a photograph of a woman with her legs in stirrups on the delivery table after she’d given birth.
The tribunal said aggravating features included:
That Appanna used his position as a gynaecologist to obtain Ms J’s health records;
Although there was no explicit discussion of him providing her health services in exchange for sex, Appanna should have realised his position as a doctor who could assist Ms J with her health issues would have been very attractive to her and this made her vulnerable;
Appanna lied to the Professional Conduct Committee [PCC] when he said he had not given Ms J’s contact details to a Stuff reporter;
He conveyed no remorse or insight into his actions.
All of these factors, the tribunal said, warranted a 12-month suspension “to make it clear to Dr Appanna and the profession that behaviour such as his will not be tolerated”.
If he resumes practice gynaecologist Dr Naylin Appanna is not required to provide a chaperone. Photo / Natalie Akoorie
However the tribunal reduced the suspension to three months because it had been three years since the conduct, Appanna had provided favourable references from patients and colleagues, and the hearing had been adjourned twice due to Covid delays, though the doctor had continued to practice during that time with a chaperone.
While Appanna would be required to undergo supervision for 12 months if he resumed practice, the tribunal would not require him to provide a chaperone for intimate examinations.
Instead, it lay this responsibility with the doctor saying it expected him to continue to offer a chaperone.
Medical Council chairman Dr Curtis Walker said the council’s role was to ensure public health and safety was protected by using the processes available to it.
Walker said it was the tribunal’s role to hear and determine disciplinary proceedings including deciding appropriate sanctions, and that the council could not comment on the penalty or length of suspension.
He noted the PCC did not appeal, the timeframe for an appeal had expired, and it would be inappropriate for the Medical Council to influence an independent PCC’s decision to file an appeal.
The Medical Council imposed an immediate interim suspension of Appanna when it was notified of Ms J’s complaint in 2019 but the doctor sought and won a stay in the District Court, meaning he could continue to practice with a chaperone while under investigation.
In Australia, where Appanna also practised, he was suspended under immediate action powers later upheld by the courts.
Former Health and Disability Commissioner and author of The Good Doctor: What Patients Want, Professor Ron Paterson, said the Medical Council was hamstrung by a weak regulatory framework. Photo / NZME
On the back of a 2017 review by former New Zealand Health and Disability Commissioner Ron Paterson, Australia does not use chaperones as an interim restriction while allegations of sexual misconduct are investigated.
Paterson, a University of Auckland health law professor, did not question the tribunal’s penalty but instead criticised the laws governing regulators which led to Appanna’s initial interim suspension being overturned.
“The sharply contrasting approach of the courts and tribunals in Australia compared with New Zealand highlights a weakness in our regulatory framework,” Paterson said.
In Australia the Victoria Civil and Administrative Tribunal upheld the suspension, finding there was a “reasonable belief” Appanna posed a serious risk and immediate action was needed to protect the public.
Appanna applied for leave to appeal in the Supreme Court of Victoria but in declining it the judge said aspects of Appanna’s evidence were alarming, especially considering he was a senior doctor with lengthy experience in gynaecology and obstetrics.
“It is telling that the same set of facts led the Victorian Supreme Court to accept that Dr Appanna posed a serious risk to patients and it was necessary to suspend him, whereas the New Zealand District Court thought that a voluntary undertaking to use a chaperone [after the complaint] was adequate to protect patients,” Paterson said.
Chief Victims Adviser Kim McGregor wants guidelines for workplaces handling complaints of harmful behaviour. Photo / Supplied
In Appanna’s case he was allowed to continue practicing with a chaperone for three years while the case was investigated.
“Serious questions must be asked when the sort of behaviour evident in this case does not lead to [interim] suspension and notice to the public of the allegations.”
The reasons for offering a chaperone are between a doctor and the Medical Council, Paterson pointed out, and the doctor is not required to tell patients why they must provide a chaperone.
“The New Zealand legislation is leaving the public in the dark. The Medical Council does not disclose how many doctors are subject to chaperone conditions.
“In any event, in Australia, it’s been recognised that chaperone conditions are inappropriate and not effective and are no longer being used.”
He said the Medical Council had sought to restrict the use of chaperones, “but they continue to be hamstrung by a weak regulatory framework and by an approach from the courts that focuses on the least restrictive condition on a doctor’s practice”.
“In my view, the balance needs to shift towards protection of the public and recognition of the community expectations of a fit and proper doctor.”
The Government’s Chief Victims Adviser Kim McGregor said the case has prompted her to consider guidelines for workplaces handling harmful behaviour complaints.
“Every sector I believe needs a set of guidelines on how to deal with harmful behaviour, harmful sexual behaviour, controlling and abusive behaviour, and they need specialist victim advocates to support victim survivors to know their rights and to help them through whatever system processes they need to engage in,” McGregor said.
“But all of these sectors also need to think about the wider community safety. And that’s why I’m really pleased that the Minister of Justice is currently taking advice and looking at consent law.”
Medical Sexual Assault Clinicians Aotearoa chairwoman Annette Milligan will contact the tribunal to offer sexual harm education. Photo / Supplied
Medical Sexual Assault Clinicians Aotearoa [Medsac] chairwoman Annette Milligan believed a three-month suspension did not reflect the gravity of the situation and planned to contact the Health Practitioners Disciplinary Tribunal.
“We are astounded at their ruling and we have noticed a significant discrepancy between what happened in Australia and what happened here, and it makes us wonder if there is a need for some education of the people who sit on the tribunal, in this area?”
Milligan said the case prompted the need for discussion on consent because consent was not static and a person could change their mind at any time.
Medsac provides education, training, and ongoing accreditation of 300 doctors, nurses, and nurse practitioners who work in sexual assault, as well as of the police and judges.
“We just want to do everything that we can to make sure that people have confidence in medical professionals, and that when they come to a sexual assault service they will be seen by specialists who understand the wide range of behaviours that can be described as sexual harm.”
HELP Auckland executive director Kathryn McPhillips supported the need for guidelines for sexual harm victims and prosecuting authorities.
“We’d like to see where any of these kinds of investigations, by any of these bodies where there’s sexual behaviour involved, have a standard practice in having a specialist sexual assault advocate supporting the person.
