Originally published in The Age
A former patient of a deceased doctor accused of sexually assaulting patients is planning to sue his estate for compensation. The patient is also looking into a claim against Cabrini hospital and Australia’s health practitioner watchdog.
Other victims are likely to join the legal action as more people come forward alleging they were molested by Andrew Churchyard – a neurologist who took his own life this year after being charged with indecent assault.
Fairfax Media is now aware of nine people with allegations against the specialist who worked at Monash Medical Centre and Cabrini, with claims of misconduct dating back to 2008.
Bree Knoester, a partner with Adviceline Injury Lawyers, said Cabrini Health and the Australian Health Practitioner Regulation Agency could also be targeted for their management of Dr Churchyard and the risk he posed to patients.
Ms Knoester said the Medical Board of Australia, which works with AHPRA, ordered Dr Churchyard to work with a chaperone while seeing male patients from May 28, 2015 because of allegations of sexual misconduct against him.
According to AHPRA, Cabrini hospital was made aware of these orders at the same time. The hospital was told that all patients needed to be advised about the chaperone when booking appointments with Dr Churchyard and that a sign about the chaperone should be visible to patients in his waiting room.
Despite this, Ms Knoester said her client continued to see Dr Churchyard at Cabrini up until July 2015 and that he was never told about the chaperone, nor did he see one.
“My client says he does not have a recollection of either,” she said.
During this period, Ms Knoester’s client says he was continually molested in line with a pattern of behaviour that had developed over five years. Over about 100 consultations between 2009 and 2015, the man claims Dr Churchyard progressively built up to asking him to undress and touch his genitals in front of the doctor as part of a “relaxation technique” to help treat anxiety.
Ms Knoester said Dr Churchyard clearly groomed patients with neurological conditions over time, carefully selecting the moment to start assaulting them.
“My client, like the others, were young men with neurological conditions which puts them in a very vulnerable class … they were willing to follow advice because their conditions were potentially life threatening,” she said.
In another case detailed to Fairfax Media, Dr Churchyard is alleged to have assaulted a patient behind a drawn curtain while his chaperone was in the consulting room.
Ms Knoester said her client planned to sue Dr Churchyard’s estate for compensation, and was also considering suing Cabrini and AHPRA. She is now calling for AHPRA to dump its use of chaperones for doctors accused of sexual misconduct, saying it does not offer patients enough protection.
While the policy aims to strike a balance between preventing further harm to patients while protecting a doctor’s right to the presumption of innocence before they face court, Ms Knoester said she knew of other examples where practitioners with chaperones had still assaulted patients.
“I’ve had cases previously where doctors have asked chaperones to step outside or when they’ve gone to the toilet, they have offended… There are ways of getting around it,” she said.
There was also a power issue where colleagues of the doctor, often nurses, were asked to be the chaperone.
“If you have a nurse who has worked with a doctor for a long time being told to chaperone the doctor and report back, that’s an interesting relationship for the nurse to be put into,” she said.
Leading medical negligence lawyer at Maurice Blackburn, Kate Booth, also called for an urgent review of the chaperone protocol to better protect patients.
A spokeswoman for AHPRA said 47 doctors in Australia were required to work with a chaperone. She could not say how many had a chaperone because of sexual misconduct allegations.
On Tuesday, Fairfax Media revealed Dr Churchyard was able to keep seeing patients at Cabrini hospital for seven months after being charged by police with indecently assaulting a patient. During this seven month period, AHPRA ordered him to have a chaperone present for consultations with male patients and posted the details of the chaperone requirement on his registration online.
However, Dr Churchyard was not ordered to tell patients why he had a chaperone. Cabrini Health has defended its role, saying it acted at all times in accord with the conditions set by AHPRA.
The AHPRA spokeswoman said: “We will further follow up with the notifiers and families involved in relation to any concerns they have about how we have responded.”
Three more male patients contacted Fairfax Media on Tuesday morning to claim they were indecently touched by Dr Churchyard, bringing the number of complainants to nine.
In one case, a 35-year-old man claimed he told other doctors at a Melbourne hospital in 2008 that Dr Churchyard had fondled his genitals. He said the doctors told him they had never heard of any complaints about Dr Churchyard before and the matter was not taken further.
Two other male patients have also claimed they were ordered to strip naked by Dr Churchyard before being indecently touched. One of the patients says his mother was asked to leave the room by Dr Churchyard before he was allegedly assaulted.
When Dr Churchyard was charged by police with two counts of indecent assault in July 2015, he was immediately suspended by Monash Health.
Bree Knoester has acted for many victims of sexual abuse, including doctor/patient abuse and historical sex abuse cases.
If you or someone you know has been a victim of sexual assault, Bree can be contacted on (03) 9321 9879 for a confidential discussion.