Sydney surgeon Gary McKay suspended after using patient as a prop, taking photos

A Sydney surgeon has been suspended after a tribunal found he used a patient “as a prop” for a joke after encouraging an anaesthetist to “have a feel” inside their rectum and snapping a photo.

Gary McKay will be suspended from practising for three months after he admitted to a “serious lapse of judgment” while performing a procedure on a patient at North Sydney’s private Mater Hospital in 2018.

The decision to suspend the surgeon came after the situation was brought before the NSW Civil and Administrative Tribunal (NCAT), which examined his unethical conduct.

The tribunal agreed that the patient was being used by Dr McKay as a “prop for a joke”, which is considered a “very serious and significant departure from the standard expected of a medical practitioner”.

While performing a colonoscopy on a patient on November 15, 2018, Dr McKay discovered a “large mass” in his rectum, which he suspected to be a “rare type of tumour” and did not look like anything he had seen before.

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“He was shocked at how much blood there was. He washed out a blood clot and discovered what appeared to be a bleeding point which seemed to be oozing. He abandoned the colonoscopy,” the tribunal document noted.

According to the tribunal, the surgeon then invited the attending anaesthetist, referred to as Dr Hill, to “put on your gloves and have a feel of the tumour”.

“It’s a once in a lifetime opportunity,” a nurse heard Dr McKay say.

Dr Hill agreed that these were the words used by the surgeon.

While the nurse was cleaning up after the procedure, she reportedly saw Dr Hill put on blue, non-sterile gloves and “put one or two fingers into patient A’s rectum” while he was under anaesthetic.

She reported hearing both doctors giggling as this was happening.

According to the judgement, the nurse saw Dr McKay pointing a mobile phone towards Dr Hill and taking photos while the patient’s legs were in stirrups.

“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 a*se,” Dr McKay reportedly said.

The nurse immediately reported the incident to the hospital’s Surgical Services Manager, who then went into the theatre where Dr McKay was.

The tribunal documents claim the surgeon said, “I’m in trouble aren’t I? … Should I get rid of the photos?”, to which the manager replied “absolutely you should”.

Dr McKay never denied inviting Dr Hill to examine the patient and, in a letter to the Mater Hospital on November 30, 2018, he accepted he had asked the anaesthetist to put gloves on and feel the rectal tumour but said he did so in the context of his professional relationship with Dr Hill.

In the letter, Dr McKay said he did not consider this was inappropriate or outside the consent obtained from the patient.

During a consultation on November 27, the patient reportedly said the surgeon told him he had asked Dr Hill for a second opinion during the operation.

The patient assumed this meant the anaesthetist had looked at his tumour on a camera on a screen.

It wasn’t until February 1, 2019, that Dr McKay told him he should have been asked for consent prior to the examination and apologised for being unprofessional, according to the judgement.

The patient said he “felt violated” and “disgusted” after finding out the details of what had happened during his operation, according to tribunal documents.

In February, the Medical Council decided to suspend Dr McKay’s registration to practice and referred the matter to the Health Care Complaints Commission (HCCC).

Later that year, Dr McKay applied to have the suspension of his registration set aside and in September the Council lifted the suspension with practice conditions in place.

These conditions were removed in July 2021 following an application from the surgeon.

The HCCC separately decided to prosecute a complaint against Dr McKay, which was heard by NCAT.

According to the tribunal, Dr McKay did not initially admit to having taken photographs, denying doing so in two letters to the hospital, saying he “motioned that he was going to take a photograph”.

It was only at the hearing on February 11, 2019, that Dr McKay actually admitted to having taken the pictures.

“He said that he had had a brain explosion, pulled out his phone and taken two photographs of Dr Hill and had said, ‘I’ll share it with every anaesthetist in Sydney’,” the judgement noted. “He told the delegates that, as soon as he had said it, he realised how stupid and unprofessional it was and that he had breached his duty of care.

“He denied that it was a photograph of Dr Hill with his finger in the rectum, but rather a photograph of Dr Hill’s head between the patient’s knees.”

Dr McKay reportedly told the tribunal that he accepts his actions amounted to a “serious lapse of judgment” and he had “completely failed” in that moment to recognise his role as an advocate for his vulnerable, unconscious patient.

In a 2019 statement, the patient said he had been seeing a psychologist who had diagnosed him with PTSD and that he was still affected by what had happened.

The tribunal also stated Dr McKay admitted asking the patient whether he wanted Dr Hill’s number so he could call and tell him that he wasn’t going to press charges, during a phone call between the par on February 1, 2019.

“(Dr McKay) conceded that there had been a self-interest in making the call because he also wanted to find out whether patient A was pressing charges against him,” the judgement states.

“He does not concede that the call was unethical but does admit it was improper.”

Dr McKay claimed his actions did not amount to professional misconduct, but the tribunal agreed with the HCCC that they did and were “sufficiently serious to justify” the three month suspension handed down.

“We accept that is not unusual for jokes to be made in the operating theatre environment to lighten what could be considered a stressful environment. We are not persuaded however that this is what occurred,” the judgement noted.

“In our opinion this cannot be simply described as a jocular incident in an operating theatre … We agree with the description used by counsel for the HCCC – patient A was being used as a prop for a joke.

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“We consider this a very serious and significant departure from the standard expected of a medical practitioner.”

The tribunal accepted there was “little prospect” that Dr McKay would behave the same way in an operating theatre in the future.

The renewal of Dr McKay’s registration will occur automatically on completion of the three month suspension.

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