Patient consent issue central to hearing against Sydney gynecologist

A panel of five people must soon decide whether a Sydney, N.S., obstetrician is guilty of professional misconduct after two patients accused him of inappropriate sexual conduct and language during separate examinations.

In January, the Nova Scotia College of Physicians and Surgeons posted allegations brought forward by two women against Dr. Manivasan Moodley. The women, who are identified as A.B. and C.D., both complained that Moodley behaved improperly during appointments in July 2017.

A.B. testified Moodley commented she was a "young, beautiful woman," questioned her about anal sex, sex toys, what kind of orgasms she had, and commented on tattoos on her lower hips. She said Moodley performed a Pap test on her, and used a finger to rub lubricant directly on her vagina in a circular motion for about one or two seconds.

C.D. also said Moodley asked her questions about sex toys and made a comment about liking the colour of her underwear. She further testified Moodley made her think that she had cancer when she did not, and went to her place of employment to ask for her.

During his own testimony, Moodley said he didn't say such things. He agreed he applied lubricant to A.B., but said the purpose of applying the lubricant was to make it easier to conduct a Pap smear.

Defence witness testifies

On Wednesday the panel heard from the final defence witness, Dr. Christian Adam, an obstetrician-gynecologist who practises in Fredericton.

Adam provided an expert report on the standards of conduct during an examination based on his personal experience, his trainingand his survey of practices in medical literature.

Adam received his medical training in South Africa, graduating from the medical program at the University of Cape Town in 1981. Moodley graduated from the Nelson R. Mandela School of Medicine at University of KwaZulu-Natal in 1987.

The majority of Adam's testimony dealt with the allegation from A.B. that Moodley used a gloved finger to rub lubricant on the "introitus," which is the medical term for the entrance of the vagina.

A.B. said the doctor told her he was about to apply lubricant to a term she did not understand. She thought the term was a piece of equipment and said nothing. Shewas surprised and shocked when he touched her.

Discomfort with lubricant

Under questioning from Moodley's lawyer, Robin Cook, Adam testified the purpose of applying lubricant during a Pap smear is to make it easier to insert a speculum into the vagina, which makesit easier for a doctor to see the cervix. Depending on the patient's body this may be uncomfortable, Adam testified.

"The patient is understandably nervous," he said. "It's something that you want to do as comfortably as possible, so that's the idea behind the lubricant."

Adam said he would typically put the lubricant on the speculum, but he had read of instances where doctors put lubricant directly on the vagina before inserting the speculum.

"You realize very quickly that everyone does it a little differently, and I think the common goal ... the common answer seems to be, of course, it's less discomfort," Adam said. He said given the description of the way Moodley applied the lubricant he did not think it was "non-clinical touching."

Under cross-examination by the college's lawyer, Marjorie Hickey, Adam said the way Moodley applied the lubricant was not the way he would typically do it, and not the way he would teach students to do it.

Hickey asked Adam if he would change his view about "non-clinical touching" if the doctor applied lubricant while making sexualized comments to the patient.

"I think sexualized comments applied in any examination would obviously technically change things, yes," he said. "I would say that's not limited to vaginal examination."

Adam agreed with Hickey's statements that if a doctor was applying lubricant to the vagina the doctor should explain why, and should make sure the patient understood.

Issue of consent

In her closing arguments to the panel, Hickey reviewed the evidence from A.B. and C.D. and stated both women came forward separately, they don't know each other, and they have little to gain from pursuing the allegations against Moodley. She told the panel they would have to assess the credibility of all the witnesses.

Hickey said the college isn't asking the panel to find that Moodley acted in an explicitly sexual way, but that he didn't act in accordance with accepted standards for a doctor because he didn't properly ensure he had informed consent from A.B.

She said this was particularly important because of A.B.'s testimony that Moodley questioned her about her sexual practices, tattoosand body.

"All the more reason, if Dr. Moodley was going to be using those kinds of comments in the context of an examination, and then in touching the patient at the vaginal opening, that a detailed, explicit consent using terminology that the patient could understand would have been required in that context," Hickey said.

"And that is not what happened."

The onus in the hearing is on the college to prove the allegations occurred, not on Moodley to disprove them. The panel's job is to decide whether it is more likely than not that the evidence rises to the standard of professional misconduct. The college does not need to prove the allegations beyond a reasonable doubt.

The hearing began in February and was scheduled to wrap up in March, but was delayed by the COVID-19 pandemic. The final day of the hearing will take place Thursday, when Moodley's lawyer will make his closing argument.