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A tribunal has found that, during a consultation, under the pretence of performing a digital vaginal examination, a Melbourne doctor penetrated a pregnant patient with his penis without her consent.
Dr Wen Zhao will face a further hearing before the Victorian Civil and Administrative Tribunal (the tribunal) to assess the seriousness of his conduct and decide what orders are necessary to protect the public.
The alleged behaviour occurred in October 2014, and resulted in a criminal investigation by Victoria Police. In November 2014, while the police investigation was ongoing, the Medical Board of Australia (the Board) used its immediate action powers to accept an undertaking from Dr Zhao that he only consult female patients in the presence of a chaperone.
In January 2016, Dr Zhao was charged with rape and, in October 2016, he was committed to stand trial in the County Court of Victoria. In November 2016 the Board suspended Dr Zhao’s registration using its immediate action powers while its investigation awaited the conclusion of the criminal trial.
In March 2019, Dr Zhao was acquitted of the charge of rape. The judge ruled there was not enough evidence to meet the criminal standard of ‘beyond reasonable doubt’ required for a jury to convict him of the rape. A Board is not bound by an acquittal in a criminal proceeding, and in June 2021, the Board referred the matter about Dr Zhao to the tribunal.
The paramount guiding principles of the scheme regulating registered health practitioners are: protection of the public; and public confidence in the safety of services that they provide. Disciplinary investigations and proceedings under the scheme focus on the behaviour of the practitioner, and whether it departs from professional or public expectations, or concepts of fitness and propriety; and if so, whether it warrants or necessitates regulatory intervention. It is important to emphasise that such investigations and proceedings are not a criminal process.
In the tribunal proceeding about Dr Zhao, the primary allegation made by the Board was that Dr Zhao penetrated the patient with his penis without her consent. The alternative allegation to this, however, was that if what transpired was a digital examination of the patient, then that examination was performed on the patient without informed consent and/or, without reasonable clinical indication or justification, and/or for a sexual purpose and/or gratification of Dr Zhao.
In a tribunal proceeding, the Board is not required to prove allegations to the criminal standard of ‘beyond reasonable doubt’. Rather, the Board must prove allegations to the civil standard of ‘balance of probabilities’. The different standard of proof, and the different focus of the proceeding, means that a tribunal can come to a different conclusion than a jury in a criminal trial, as to whether certain behaviour has been proven or not.
The evidence before the tribunal included evidence obtained in the police investigation, and given at the criminal prosecution, including: the statement made by the patient; statements made other persons present at the medical clinic on the day of the incident made; forensic DNA analysis of swabs taken from Dr Zhao about nine hours after the incident (including from his penis); expert evidence relied upon in the criminal proceeding; transcript of evidence given by specific witnesses in the criminal proceeding (including the evidence of the patient); transcript of Dr Zhao’s record of interview with Victoria Police. The evidence also included evidence obtained by the Board in its investigation, including expert reports that were not before the County Court (including an expert report obtained by Dr Zhao); and Dr Zhao’s responses to Board’s investigation.
Dr Zhao ultimately did not participate in the hearing that was held on 14 and 15 February 2024. Because of this, the Board’s witnesses were not required for cross-examination and the tribunal hearing was limited to hearing oral evidence regarding the DNA evidence, and hearing submissions from the Board as to why the evidence relied upon by it, proved the allegations.
In a written decision issued on 20 August 2024 (corrected 6 September 2024), the tribunal found it was ‘comfortably satisfied on the evidence before it’ that Dr Zhao had penetrated the patient with his penis without her consent.
‘The tribunal is comfortably satisfied that on 9 October 2014 in the course of a consultation with a patient, the patient, in his consulting room Dr Zhao penetrated the patient’s vagina with his penis without the patient’s consent,’ the tribunal concluded.
‘The tribunal notes that this is a finding on the civil standard of the balance of probabilities, keeping the Briginshaw principle in mind. In a criminal proceeding on the charge of rape on the same factual allegations at the higher criminal standard of proof, Dr Zhao was acquitted by the County Court.’
The tribunal also found that a digital vaginal examination performed by Dr Wen Zhao on the patient immediately prior was undertaken without fully informed consent, without a reasonable clinical indication or justification, and was for a sexual purpose and sexual gratification of Dr Zhao.
The evidence of the patient considered by the tribunal, is summarised in its decision in detail. It includes the patient’s description of the sensation of being penetrated during the purported examination: that it felt like the sensation of having sex, and that she could feel the material of Dr Zhao’s trousers and zip or something metal rubbing on her bare bottom. The tribunal concluded that it was ‘comfortably satisfied that the patient experienced [these matters among others] and each of [those] matters is supportive of a finding that Dr Zhao penetrated the patient with his penis’.
The evidence of the patient considered by the tribunal, also included the patient’s description of what transpired when she challenged Dr Zhao later in the consultation. The tribunal concluded that it was ‘comfortably satisfied that Dr Zhao’s zip being open, the wet stain on his pants and his attempts to hide his zip and the stain from the patient are supportive of a finding that Dr Zhao penetrated the patient with his penis during the examination’.
The tribunal also considered forensic DNA evidence that was obtained nine hours after the consultation. Swabs taken from Dr Zhao’s penis detected DNA that was more than 100 billion times more likely to have come from the patient than another random person. It concluded that ‘
The DNA evidence that the patient’s DNA was on the swabs taken from Dr Zhao’s penis is supportive of a finding that Dr Zhao penetrated the patient with his penis during the examination’.
The tribunal also stated: ‘The tribunal did not have the same evidence before it as the County Court did in the criminal trial. The criminal trial was for a different purpose and was decided under a different standard of proof to the present case. The tribunal had before it in the present matter additional evidence that was not before the County Court, for example, expert evidence from two additional medical practitioners and additional evidence from the forensic scientist, who gave evidence in the County Court’.
The matter is listed for an administrative mention on 10 September 2024 by which time the parties may jointly request VCAT to make orders to list the proceeding for a hearing on the issues of characterisation of the proven conduct and the appropriate determination.
The tribunal’s order was made on 20 August 2024 and is available on Austlii.