A civil tribunal has found a GP sexually assaulted a pregnant patient during a medical consultation, a ruling that came after the doctor was found not guilty of rape in the Victorian County Court.
Melbourne GP Wen Zhao was suspended from working as a doctor by the Medical Board of Australia after being charged with raping a patient, who was 22 weeks pregnant at the time, during an internal examination in 2014.
Zhao was found not guilty in a 2019 trial.
A civil tribunal has found a GP sexually assaulted a pregnant patient during a medical consultation, a ruling that has come after the doctor was found not guilty of rape in the Victorian County Court.Credit: Michel O'Sullivan
Following the criminal court ruling, the medical board – which conducted its own investigation – referred the matter to the Victorian Civil and Administrative Tribunal due to the seriousness of the allegations. The tribunal has broad powers to prohibit healthcare workers from providing services.
After reviewing the evidence, the tribunal found on the balance of probabilities, Zhao did sexually violate the woman during the consultation and that “in the course of a consultation, Dr Zhao penetrated the patient’s vagina with his penis without the patient’s consent”.
Zhao denied he had sexually assaulted the patient — in his police interview, in his written responses to the medical board, and again in a written submission to VCAT this year.
The tribunal also found Zhao performed the internal examination on the woman, who cannot be named for legal reasons, without her full and informed consent.
It ruled there was “no reasonable clinical indication and justification” for the procedure and that there was a lack of diagnostic benefit to be derived from an internal examination.
“That was for a sexual purpose and the sexual gratification of Zhao,” tribunal members Dr Angela Sungaila, Dr Elizabeth Mason and Neill Campbell wrote in their findings.
The civil ruling was also at odds with elements of the interpretation of the testimony of a forensic biologist in the criminal proceedings.
The tribunal considered forensic DNA evidence obtained nine hours after the consultation and swabs taken from Zhao’s penis that detected DNA that was “more than 100 billion times more likely to have come from the patient than another person”.
Traces of the woman’s husband’s DNA were also found on Zhao’s penis.
The tribunal found the weight of the forensic evidence, alongside other factors, including the zip of Zhao’s pants being open and a wet stain he attempted to conceal on his pants near his zipper with a towel, were all supportive of the conclusion he had sexually assaulted the woman.
It largely rejected a notion raised in the County Court that the patient’s DNA found on Zhao’s penis could somehow have been the result of any indirect or secondary transfer following the internal examination.
“The tribunal is comfortably satisfied on the balance of probabilities in the factual circumstances of this case that there was a direct transfer,” the tribunal wrote in its findings.
The tribunal’s findings were made on the civil standard of the balance of probabilities – a less onerous standard of proof than the beyond-reasonable-doubt test that governs criminal proceedings.
The so-called Briginshaw principle was used, which applies in civil cases involving serious allegations, and requires courts to proceed cautiously in making grave findings.
Documents submitted to the County Court detailed that the woman took her young son, who was ill with croup, to see Zhao at a Melbourne medical clinic on September 29, 2014.
During the visit for her son, Zhao told the woman she looked unwell, took a swab from her mouth, and checked her blood pressure.
After telling the woman her blood pressure was low, he suggested she visit him fortnightly in between her appointments with her perinatal specialists, so he could help monitor her pregnancy, court documents state.
At an appointment a few days later, Zhao told the woman he was concerned she may have an ovarian cyst and if she experienced cramping, bleeding or severe pain, she should go straight to hospital.
On October 9, 2014, the woman woke up with abdominal pain in her lower-right side and attended an appointment with Zhao.
Court documents state Zhao took the patient’s blood pressure, checked the baby’s heartbeat, and then asked the patient to get onto the examination table and turn on her side.
The woman said that while she was turned on her side and was unable to see Zhao, he sexually assaulted her.
After the examination, Zhao discussed the potential diagnosis.
The woman became distressed and asked him repeatedly what he had used for the procedure, noting it had not felt like an ordinary internal examination, where a doctor uses gloves and their hand, to examine a patient, according to court documents.
Zhao was using a towel to conceal a wet stain on his pants and the woman observed the zip of his pants was undone. She told the County Court in 2019 this confirmed her “worst suspicions”.
He told the patient he was going to call an ambulance, that she had a cyst, and it was “very dangerous” and she needed to go to hospital.
“I acted professionally. You agree, don’t you, that I acted in your best interest out of concern for you and your pregnancy?” the documents state Zhao told the patient. “I think you have miscarried the baby. I need you to go straight to the … hospital.”
But the tribunal found his behaviour was an attempt to deflect attention away from his conduct by creating a made-up medical crisis.
“There was no reasonable medical basis for what Dr Zhao said to the patient,” the tribunal found.
The patient also complained to the national health regulator.
Zhao has also sought to have the suspension on his medical licence lifted. His attempts to have his name suppressed in the findings on mental health grounds were refused.
In a statement to The Age last week, Zhao again denied the allegations via his lawyers at Kennedys Law.
“A judge of the County Court of Victoria, after hearing all the evidence, including the evidence of the complainant, concluded that there was no case to answer. She directed that he be acquitted,” the statement said.
Several high-profile cases in the last two years, where the civil standard of proof has been used, have led to landmark rulings.
Last year, a Federal Court judge found decorated soldier Ben Roberts-Smith murdered four unarmed prisoners in Afghanistan.
Former Liberal staffer Bruce Lehrmann also lost his multimillion-dollar defamation suit after a judge found Network Ten and Lisa Wilkinson had proven the former federal Liberal staffer.
The tribunal will determine Zhao’s penalty at a later date.
If you or anyone you know needs support, you can contact the National Sexual Assault, Domestic and Family Violence Counselling Service on 1800RESPECT (1800 737 732), Lifeline 131 114, or Beyond Blue 1300 224 636.
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