On 15 November 2018 patient A was admitted to the Mater Hospital, North Sydney for a colonoscopy. Patient A understood that meant he would be put under a general anaesthetic and Dr McKay would look around his colon through a camera.
Dr McKay admits that during the procedure-
- He inappropriately invited Dr Hill (the anaesthetist attending at the procedure) to conduct a digital rectal examination of patient A while patient A was under anaesthesia and without his knowledge or proper informed consent and without a valid clinical reason; and
- He took a non-clinical photograph of patient A with his mobile phone, recording the examination performed by Dr Hill.
The scout nurse heard Dr McKay say to Dr Hill, “Put on your gloves and have a feel of the tumour. It’s a once in a lifetime opportunity”. Dr Hill agreed that those were the words used by Dr McKay. While the scout nurse was cleaning up after the procedure, she saw Dr Hill put on blue non-sterile gloves, walk down to the end of the bed, and put one or two fingers into patient A’s rectum. As he did this, she heard both doctors giggling.
The scout nurse then saw Dr McKay was holding a mobile phone that he was pointing towards Dr Hill, and she could see him taking photographs of the patient whose legs were in stirrups with Dr Hill’s fingers in his rectum. Dr McKay said, “I’m taking these photos to send to all your anaesthetist mates so they can see you with your fingers stuck up the patient’s arse”.
Dr Gary McKay, Colorectal Surgeon, provided false and misleading information to the Mater Hospital about taking the photograph. He also failed to adequately disclose that he had taken the photograph to the patient and attempted to persuade him not to complain to the police about it.
It was found that Dr McKay’s conduct was both improper and unethical.
The Civil And Administrative Tribunal of NSW stated at paragraph 64:
“In our opinion this cannot be simply described as a jocular incident in an operating theatre. At the invitation of Dr McKay, Dr Hill inserted his fingers into the rectum of patient A. Patient A was unconscious. Patient A had not consented to the examination. Dr McKay took photographs of patient A while he was in this state. He joked about whether he would send the photographs to other doctors. We agree with the description used by counsel for the Health Care Complaints Commission – patient A was being used as a prop for a joke. We consider this a very serious and significant departure from the standard expected of a medical practitioner.
We also consider Dr McKay’s failure to openly disclose what he had done, firstly to his employer and then to patient A, to be a very serious departure from the conduct expected of a medical practitioner. As Dr McKay conceded, he did this out of self-interest because he was concerned at the possible consequences, including the loss of his job and criminal charges. We take into account that Dr McKay wrote those two misleading letters to the Hospital after he had had time to reflect and then made a deliberate decision to not fully disclose what had occurred.
Being ethical and trustworthy are fundamental requirements of a practitioner.”
Source Health Care Complaints Commission v McKay [2022] NSWCATOD 95. Decision date: 26 August 2022.
Furthermore the Tribunal remarked “We must make clear to other practitioners and patients that conduct such as that which Dr McKay exhibited both in the operating theatre and then by failing to make full and open disclosure to his employer and the patient, will not be tolerated.”
The Tribunal suspended Dr Gary McKay’s medical registration for 3 months.
