ACT MEDICAL BOARD & the MEDICAL PRACTITIONER (Occupational Discipline)

[2009] ACAT 34

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ACT MEDICAL BOARD & THE MEDICAL PRACTITIONER (Occupational Discipline) [2009] ACAT 34

HP 5 of 2008

Catchwords:             OCCUPATIONAL DISCIPLINE – HEALTH PROFESSIONS – male medical practitioner - sexual relationship with female patient - patient emotionally vulnerable - whether relationship commenced after termination of doctor/patient relationship - relationship continued over several months - emotional damage to patient - suspension from practice as appropriate penalty

Health Professionals Act 2004 (ACT), ss 24, 41, 42, 43, 46A, 144
ACT Civil and Administrative Tribunal Act2008 (ACT), ss 38, 39, 65, 66, Pt 6
ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009 (ACT), clause 27
Health Professional Regulations 2004 (ACT), ss 133, 134, 144, Pt 4.1
Health Professionals (ACT Medical Board Standards Statement) Approval 2006 (No.1) (Notifiable Instrument NI2006 – 175)

Health Care Complaints Commission vs. Dr Mark Clifford Fairbrother (18 December 2008) (Medical Tribunal of NSW) No. 40020 of 2007
In the Matter of Dr Gary Beckhurst and In the Matter of an Inquiry by the WA Medical Board (18 September 2001)
Medical Board of WA & Smith 2006 WASAT 213
Hoile v Medical Board of South Australia 104 CLR 157
Re A Medical Practitioner 1995 2 QDR 154
RTT v Nurses Board of Victoria 2000 VSC 498

Sexual Misconduct Assessment Service – Assessment Protocol
Sexualisation of the Doctor – Patient Relationship: is it even ethically possible?  Katherine H. Hall “Family Practice” Vol 18 No 5, 511-515

Tribunal:                  Mr C G Chenoweth     Presiding Member

Dr A McIntosh           Member

Ms D Lucas                Member

Date of Orders:  25 September 2009
Date of Reasons for Decision:         25 September 2009

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          HP 5 of 2008

BETWEEN:

ACT MEDICAL BOARD

Applicant

AND:

THE MEDICAL PRACTITIONER

Respondent

TRIBUNAL:            Mr C G Chenoweth     Presiding Member

Dr A McIntosh           Member

Ms D Lucas                Member

DATE:  25 September 2009

ORDER

The Tribunal Orders that:

1. The respondent is suspended from practice as a medial practitioner for a period of 12 months and until order number 2 has been complied with;
   
   
2. The respondent is to attend at his own expense and complete the course in Sexual Misconduct Assessment, as directed by the Act Medical Board, through the Sexual Misconduct Assessment Service of the Royal Melbourne Hospital in Victoria before becoming eligible for the lifting of the suspension; and
   
   
3. The Tribunal directs that the order for suspension is to take effect one month after the date of delivery of the reasons for decision.

………………………………..
Mr C G Chenoweth

Presiding Member

REASONS FOR DECISION

1. This is an application by the ACT Medical Board (“Board”) originally under section 46A (1) (a) of the Health Professionals Act 2004 (“HP Act”) but amended as an application under section 42 of the HP Act. The application was for an order pursuant to section 66(2) (e) of the ACT Civil and Administrative Tribunal Act 2008 (“ACAT Act”) suspending the respondent’s registration as a medical practitioner for a minimum of 12 months, and also until the respondent had completed a course in sexual misconduct assessment, as directed by the Board, through the Sexual Misconduct Assessment Service, Royal Melbourne Hospital, Victoria. The Board also sought any other order that the Tribunal considered appropriate.

2. The grounds on which the Board sought the order was that the respondent had engaged in inappropriate behavior with a woman who was a user of a health service provided by the respondent.

Jurisdiction of the Tribunal

3. The Board’s application was made on 2 September 2008, and was an application under the HP Act as it was before the ACAT Act came into effect. The matter had not been heard under the provisions of the HP Act as it was at the date of the application.

4. The ACAT Act became effective on 2 February 2009. Under Part 6, Division 6.2, the Tribunal was given power to make occupational discipline orders. The ACAT Act sets out in this division the matters that the Tribunal is directed to have regard to before making an occupational discipline order are set out. (Sections 65 and 66 ACAT Act.)

5. At the time that the ACAT became effective an amendment to the HP Act became effective. This amendment substituted a new Part 7 (sections 40 – 46) for the old Part 7. The original application had been brought under the old Part 7.

6. Regulations were made under the powers contained in the ACAT Act to provide that any application that had been bought under the HP Act before the ACAT Act became effective, was to be taken to be an application to the Tribunal for an occupational discipline order under section 42 of the HP Act. (ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009, clause 27 (2)).

7. The application originally made to the Health Professions Tribunal under the HP Act as it was before 2 February 2009 was amended on 3 April 2009 to be an application to the Tribunal.

8. The HP Act is an “authorizing law” for the purposes of the ACAT Act because the HP Act is a Territory law that provides that an application may be made to the Tribunal (ACAT Act Dictionary.).

9. Both parties at the hearing of the application were represented by counsel. Counsel for the Board outlined in detail the legislative scheme set out in the preceding paragraphs and the Tribunal was provided with written submissions on the question of jurisdiction. No issue was taken with the proposition that the application was properly before the Tribunal and the Tribunal is satisfied that it has the jurisdiction to deal with the matter.

The Parties

10. The Board is the health profession board established under section 24 of the HP Act for the regulation of medical practitioners. A person may not practice as a medical practitioner in the Australian Capital Territory unless registered with the Board. If the Board believes on reasonable grounds that a ground for occupational discipline exists in relation to a health professional, it may apply to the Tribunal for an occupational discipline order in relation to the health professional (HP Act section 42). It therefore becomes the “entity bringing the application” for the purposes of section 65 of the ACAT Act.

11. The respondent is a registered medical practitioner.  He conducts a general practice in suburban Canberra.  He works by himself without partners or medical associates.  He graduated in 1975. He gave evidence that he had extensive experience as a medical practitioner in rural areas, working in hospitals and as a private practitioner in New South Wales and the ACT.  He has had some overseas experience as a medical practitioner.  He has conducted his present practice from the same rooms since 2001.

Confidentiality

12. The proceedings were the subject of a confidentiality order dated 25 March 2009.  The order prohibited the publication of the name of the respondent and any intended witness given at the hearing. The order also prohibited the publication of the matters contained in documents or in evidence given to the Tribunal which would tend to identify the name of the respondent or any intended witness.  By consent of the parties the confidentiality order was amended at the commencement of the hearing to alter the word “or” to “and” at the end of paragraph (a) and where second appearing in paragraph (b).

13. Counsel for the respondent applied at the commencement of the hearing for an order under section 39 of the ACAT Act that the hearing be held in private. This application was opposed by counsel for the Board. The Tribunal noted that section 38 of the ACAT Act indicated in the heading that hearings were usually to be held in public unless the Tribunal made an order under section 39. Section 39 required that Tribunal be satisfied that the right to a public hearing is outweighed by competing interests.

14. Counsel for the respondent pointed particularly to section 39(5) which provided that the right to a public hearing is outweighed by competing interests if the Tribunal is satisfied that the application, or part of it should be kept private “(b) because the interests of the private lives of the parties require the privacy.”

The relevant private life of the respondent was the essence of the complaint by the Board.  The Board has an interest in taking actions to prevent conduct of the sort the subject of the complaint.  The Tribunal decided that the interests of the respondent did not outweigh the right to a public hearing.

15. The Tribunal did note that the existing confidentiality order continued unless a further order was made.  It considered that this gave an appropriate degree of confidentiality to the identity of the respondent and the complainant. The Tribunal refused to make an order that the whole of the proceedings should be held in private.

The Standards of Conduct

16. The grounds upon which the Board sought the orders from the Tribunal was set out in the amended application of 3 April 2009. They were as follows:

"Contrary to section 144 of the Health Professions Regulations 2004 ("HP Regulations") the respondent engaged in inappropriate behaviour involving (name of patient) who was a user of a health service provided by the respondent."

Particulars of the grounds were set out in the application.

17. Section 144 of the HP Regulations is part of chapter 4, headed "Required standard of practice." Section 144 is headed "Inappropriate behaviour". It reads

"(1) A registered health professional must not engage in inappropriate behaviour involving someone who is, or was, a user of a health service provided by the health professional.
(2) A standard statement may set out what kind of behaviour is inappropriate in relation to a health profession."

18. The power in the Board, as the registration body for medical practitioners, to develop and promulgate standards statements is set out in part 4.1 of the HP Regulations. The sections in this part allow the Board to decide what behaviour does, and does not, meet the required standard of practice in relation to relevant health professionals, and to set out the required standard of practice that, if breached, will mean that the health professional is not competent to practice. (Section 133 of the HP Regulations.) Section 134 of the HP Regulations allows a health profession board to develop standards to determine the required standard practice for the health profession that it regulates. (Section 134 (2) of the HP Regulations.) These standards may be set out in a standards statement. (section 134 (1) of the HP Regulations.)

19. The Board made a standards statement on 16 May 2006. Section 134 (6) of the HP Regulations provides that a standards statement is a notifiable instrument. The Board's statement was made as "Health Professionals (ACT Medical Board Standards Statement) Approval 2006 (no. 1.)"  It is notifiable instrument NI 2006 – 175. Annexed to the instrument is a detailed standard statement, including the section headed "Medical practitioners and sexual misconduct," and a more general code of conduct. This document is referred to in these reasons as "the standards statement."

20. The sections of the standards statement relevant to this complaint, and on which the Board bases its application, are both the sections of the standards statements dealing with sexual misconduct (clause 12 of the amended application) and paragraph 3 and 16 of the code of conduct (clause 13 of the amended application.)

Clause 3 refers to the general principles that apply to the doctor/patient relationship. Clause 16 deals with the abuse of a professional position.

21. The section of the standards statement dealing with the issue of medical practitioners and sexual misconduct has two important clauses in his opening section. These indicate the significance of the issue as between a doctor and patient, and the importance of preserving the expectation of the public in this area.

Section 1 is headed “General” and provides:

“This paper aims to ensure medical practitioners are aware of their responsibilities in instances where there might be sexual attraction between a practitioner and his or her patient, including former patients." (Emphasis by the Tribunal.)

Section 2 provides:

"It is the responsibility of the practitioner to behave responsibly at all times and to maintain professional boundaries with patients. Any exploitation of the relationship between the patient and the practitioner must be considered as a violation of the public's trust."

22. Sections 5 and 6 of this part of the standards statement describe what is meant by sexual violation (section 5) and sexual impropriety (section 6). Sexual violation includes practitioner -- patient intercourse, whether or not initiated by the patient, and then provides specific examples of other conduct that may be included in this definition. Sexual impropriety is defined to include conduct at a lesser level than sexual violation, but which is motivated by sexual desire. It is not necessary to refer further to the behaviour defined as sexual impropriety, because the Board's case and the admission by the respondent was that there had been sexual intercourse within the meaning of paragraph 5 (a) of this section of the standards statement.

23. It is necessary at this stage to refer to the inclusion of "former patients" within the General paragraph referred to in paragraph 21 above. The evidence of the respondent indicated that he was aware that the standards statement applied to an existing patient.

24. The Tribunal rejects the view that a medical practitioner can have a doctor/patient relationship on one day (under which conduct amounting to sexual violation is forbidden) and on the following day or shortly thereafter be free of any such restrictions. Such a proposition ignores the clear words referring to “former patients” referred to in paragraph 21 above, and also ignores the capacity for manipulation or pressure rising from the doctor/patient relationship. It is to prevent such manipulation or pressure, that the standards statement includes "former patients" within its prohibition, and places the onus on the medical practitioner to resist any such suggestion from a patient. Sexual relations between a doctor and patient are not simply as a matter of private consensual behaviour between adults. The statement makes it clear that such conduct is forbidden in all circumstances, not simply where there may be pressure or trickery by the medical practitioner against the patient.

25. Counsel for the respondent argued that in interpreting these standards, the Tribunal should take account of current day sexual behaviour between mature adults, and not be overly prohibitive in the interpretation of the standard. The Tribunal rejects this proposition. It is not for the Tribunal to determine what should be the permitted standards of conduct in this area, where experienced and responsible medical practitioners through the determinative process of the Board have issued a standards statement in the form of subordinate legislation. The Tribunal's obligation is to interpret the words of that standard in the light of the evidence in the case.

26. Counsel for the respondent also argued that in order to find a violation of the standard, there should be some form of exploitation, trickery or violence by the practitioner in relation to the patient. No such qualification is included in the standard. The evidence of the medical practitioners called on behalf of the Board indicates that a violation of the proper boundaries between doctor and patient was a prohibition taught as part of the medical course, and was a fundamental principle of proper medical practice. The Tribunal cannot accept the proposition advanced on behalf of the respondent.

The evidence of the complainant.

28. The complainant filed a complaint with the ACT Human Rights Commission on 8 August 2007, complaining against the conduct of the respondent. This complaint was referred to the Board, and formed the basis of the Board's application. The complainant filed a witness statement in these proceedings dated 23 January 2009, and gave oral evidence to the Tribunal.

29. The complainant is a mature age woman with one young child. In March 2002 she experienced several traumatic events at her workplace. As a result of this event of she sought treatment from the respondent for her stress condition, and also for her general medical needs. The respondent diagnosed as suffering from post-traumatic stress disorder, and referred her to a psychiatrist. The complainant was also being treated by a clinical psychologist and the psychiatrist for her post-traumatic stress disorder. In September 2003 the complainant's daughter was born. Thereafter, the complainant's relationship with her partner broke down and they separated. The complainant gave evidence that she had not established a new relationship, and that she was on unable to work with the attendant shortage of money. As a consequence of these factors and the situation generally, she had become socially isolated.

30. The complainant continued to be treated for her post-traumatic stress disorder, and was receiving workers compensation payments. She had no other significant income, although she was engaging in the production of some artworks which provided small amounts of money from time to time.

31. The complainant gave evidence that she noticed the respondent becoming more personally attentive to her from about April 2006. This attention included sharing personal life stories with her, including the difficulties that he had following the breakdown of his own marriage, and his own struggle with depression. He also discussed with her a relationship that he had had with another woman.

32. The developing relationship involved the respondent visiting the complainant at her home for reasons unconnected with medical treatment, taking the complainant to lunch at a town near Canberra, assisting the complainant with gardening and the moving of the artworks and the purchase of one of them, and visits to the house of the parents of the complainant in a country centre near Canberra. The complainant gave evidence that at times the respondent would come to the complainant's house uninvited, and bring a meal which he would eat at the house. The complainant also gave evidence that at the respondent's surgery, she would attend and share social interaction with members of the staff including members of the respondent’s family, and that it was a place where she felt accepted and she could enjoy the company of the respondent.

33. The complainant also gave evidence, which was not disputed by the respondent, that on 4 October 2006, the respondent came to her house and they are engaged in sexual behaviour, but not amounting to intercourse. On the following day, the respondent again visited the complainant at her house and they had a discussion about appropriate doctor/patient behaviour, along with other matters. This discussion resulted from the respondent having obtained material on doctor/patient relationships and sexual interaction from a legal practitioner, and providing that information to the complainant. The complainant and the respondent then had sexual intercourse for the first time.

34. The relationship between the complainant and the respondent continued for some months. There were trips to activities out of Canberra, including ones in Sydney and on the New South Wales north coast. The sexual intercourse continued on various occasions as part of that relationship.

35. The relationship between the complainant and the respondent broke down in about March 2007. In the witness statement, the complainant gave evidence that her experiences with the respondent in the months between August 2006 and March 2007 caused a severe setback in her recovery from the post-traumatic stress disorder that she suffered, that the experience was painful, confusing and disturbing and only made her anxiety and depression worse. In her witness statement, the complainant gave evidence that she had promised the respondent that she would never tell anyone about the relationship and she felt under enormous pressure to keep the details confidential from her psychiatrist and new general practitioner.

36. The complainant was cross-examined about her statement, which established some uncertainty about small matters of detail, but the Tribunal is satisfied that her account is substantially correct in relation to the dates and conduct of the respondent.

37. The complainant gave evidence that she had discussed with the respondent the issue of whether a patient and medical practitioner could have a personal and sexual relationship. She gave evidence that the respondent told her that he had consulted a lawyer about the issue. The lawyer had provided to the respondent some material which indicated that this behaviour was not acceptable. The respondent had provided this material to the complainant and discussed it with her. The complainant also gave evidence that the respondent told her that he should not be doing what he was doing with the complainant, but that he did not care. He said that his feelings for her overrode the obligations which he recognised should apply between a practitioner and patient. The complainant's evidence in this regard is supported by the witness statement of the Respondent dated 20 March 2009 and filed in these proceedings and by his letter to the Board of 10 July 2008 (Exhibit 22.)

38. The complainant gave evidence that on 12 October 2006, the respondent gave a small party for her at the surgery, as it was the complainant's birthday. On this occasion the complainant gave the respondent a card thanking him for his professional support as the doctor and indicating that she was changing doctors for personal reasons. The complainant gave evidence that she backdated the card to correspond approximately with the date of the last consultation that she had had with him.

39. The complainant also gave evidence that at the gathering at the respondent's surgery on 12 October, the respondent gave her a letter a copy of which is Exhibit 3. This letter is dated 4 October 2006. The letter acknowledges that the complainant was seeking medical services elsewhere, and said that the complainant's medical notes were given to her. The complainant gave evidence that this letter was signed by the respondent on 12 October and given to her on that date. The Tribunal accepts her evidence on this point.

40. The Tribunal is satisfied that the purpose in the complainant giving the card to the respondent and the respondent backdating and giving her the letter was as part of an arrangement to represent that the doctor-patient relationship had ceased on the day before the complainant and the respondent first had sexual intercourse. The only credible explanation for the exchange of correspondence was that it was undertaken in the mistaken belief that it would absolve the respondent from his obligations under the standards statement if he commenced a sexual relationship with the complainant immediately after the doctor-patient relationship was terminated.

41. The complainant also gave evidence that on this date (12 October 2006) the respondent gave her a WorkCover certificate for Comcare, backdated to 4 October 2006. This statement was necessary to ensure that the complainant continue to receive her workers compensation payments.

Evidence of the complainant's psychiatrist.

42. The Board filed a witness statement by, and called evidence from, a psychiatrist, who had been treating the complainant since June 2002. The treatment was in connection with severe traumatic episodes and post-traumatic stress disorder, following the incident at work referred to in paragraph 29 above.

43. For the purpose of the Medicare rebates, the psychiatrist received a formal medical referral dated 16 May 2002 from the respondent as the treating general practitioner, indicating that he had diagnosed the complainant as suffering from post traumatic stress disorder and depression. The psychiatrist was continuing to treat the complainant up until the date of the hearing before the tribunal.

44. The psychiatrist gave evidence that prior to January 2007 she had noticed a material deterioration in the emotional well-being of the complainant. In January 2007, the complainant told the psychiatrist that she had terminated a sexual relationship of several months duration with the respondent, who was her general practitioner. The psychiatrist discussed with her why a medical practitioner having a social, let alone a sexual relationship with a patient places the patient at a distinct disadvantage. The psychiatrist also gave evidence that in her opinion the respondent conducted the relationship on his own terms without regard to the complainant's emotional circumstances, and vulnerability and depression. The psychiatrist considered that the complainant did not have the cognitive capacity to understand that this was a serious ethical problem. The complainant was advised to consider reporting the matter to the Board. She expressed some reluctance to make a complaint because she was concerned that she may not be believed and felt "guilty" about an understanding that she had with the respondent. The understanding was that the complainant would not talk about the relationship.

Evidence of the complainant's general current general practitioner.

45. The Board filed a statement by, and called evidence from, the complainant's current treating general practitioner.  The doctor gave evidence that he had first seen the complainant in March 2007, in the company of an independent human resources consultant. The professional relationship between the doctor to whom the complainant had been referred after she ceased to have the respondent as her treating practitioner had not gone well, and the human resources consultant (who appears to have been engaged by Comcare) had advised the complainant to attend the witness for further treatment.

46. The doctor gave evidence that the complainant presented with significant and complex emotional issues which appeared to arise at least in part from the relationship with the respondent. These required medical intervention. The doctor gave evidence that he had continued with the treatment of the complainant on a number of occasions. The complainant was an emotionally fragile person, suspicious of male medical practitioners. In his view her condition had been made worse (at least in part) because of her relationship with the respondent and the events which occurred during and after the time of her treatment by him.

47. The Tribunal accepts that the experience of the psychiatrist and of the general practitioner and that their observations about the complainant during their periods of treatment may be relied upon as indicating her condition during those periods. The Tribunal takes note that the training and experience of the psychiatrist lies in the fields of the treatment of conditions such as post traumatic stress disorder, and that the general practitioner conducts a practice in which a significant percentage of patients presented with conditions of mental illness or mental distress. The respondent in his evidence indicated that he did not have significant experience in these areas, although he had originally diagnosed the condition of post-traumatic stress disorder, had referred her to a psychiatrist for this, and continued to give Comcare certificates specifying this as the ground for her inability to work. Where there is a conflict between his views and those of the witnesses for the Board the Tribunal prefers to rely upon the evidence of the witnesses for the Board.

Evidence of the respondent.

48. The respondent filed a witness statement dated 20^th March 2009. He stated that he had been the treating general practitioner (or one of them) for the complainant since March 2002. He had seen the complainant as a result of the workplace incidents that led to her diagnosis of post-traumatic stress disorder, at about that time. He had initially given her a referral to a psychiatrist other than the one who gave evidence. This therapeutic relationship did not proceed satisfactorily, and the respondent referred the complainant to the psychiatrist who gave evidence. The respondent said that where a patient presented with psychological or psychiatric conditions, he always referred them on rather than attempting to treat the condition himself. As her general practitioner, he had provided ongoing certificates to Comcare but was satisfied on the basis of the reports from her psychiatrist, and the fact that she was also attending a psychologist, that it was appropriate to give those certificates without making a separate diagnosis himself on each occasion.

49. In about August 2006, the respondent was aware that his feelings for the complainant were developing into one of personal attraction. At about this time he sought advice from a colleague, who advised him that these relationships were ones which have generally not worked out. At a later date, he made an appointment with another colleague with whom he had attended a number of professional development seminars, intending to discuss the situation with her. When he attended at her rooms he was unable to raise the issue because of his embarrassment and anxiety over the issue, and advised her that he had come to seek treatment and advice for a medical condition of his own.

50. In the respondent’s witness statement, he acknowledged that as his feelings grew he had refreshed his mind on the Board’s standard statements relating to medical practitioners and sexual misconduct. He also sought some guidance from a legal practitioner, who provided advice and copies of documents and articles to him on about 14 September 2006. The advice given to the respondent by the legal practitioner was "there is quite a bit of conflicting information available in relation to this topic. However in general, my advice would be not to enter into any relationship with an existing patient."

51. The respondent later provided to the complainant the documents which had been given to him by his lawyer, and discussed them in detail with her. The respondent acknowledges that on 3 October he and the complainant discussed the documents that the respondent had received from his lawyer, and the complainant said words to the effect that as she saw him not as a doctor but as a friend and not a person in authority, that they were on equal footing and they could have a relationship.

52. In a letter to the Board from the respondent dated 10 July 2008 (Exhibit 22) the respondent acknowledged that he fell in love with the complainant and was unsure what he should do, that he was aware that the board made it quite clear that this relationship should not take place, and that he had consulted a legal practitioner who provided advice to him that a relationship between a doctor and a patient was a breach of standards. Having considered all this material together, the complainant and the respondent "decided to put things in train." This comment is interpreted by the Tribunal to indicate that the letter from the respondent dated 4 October 2006 and the card that complainant wrote to the surgery thanking staff for their help and advising that she was seeking services elsewhere were steps that the complainant and respondent considered would be evidence of the ending of the doctor-patient relationship, and that it would enable a sexual relationship to commence. As indicated in paragraph 39, the Tribunal is satisfied that this exchange was undertaken after the respondent and the complainant commenced a sexual relationship.

53. The respondent confirmed in evidence that he provided treatment on one occasion for the complainant after 4 October 2006 by writing a script for sleeping medication, and he also provided a further Comcare certificate. The certificate was provided because the respondent knew that this was the complainant’s source of income and he wanted to ensure that she continued to receive it until arrangements were made for a new general practitioner for the complainant.

54. The respondent filed a rebuttal statement to the statement of the complainant. There is some disagreement about the detail of the relationship and on when sexual intercourse occurred between 4 October 2006 and March 2007, but these are not material to the outcome of these proceedings.

55. The respondent filed a statement from a registered psychologist. This report expressed certain conclusions about the honesty of the complainant and her previous medical history. While the psychologist indicated that she had read the witness statements filed in the proceedings and certain other documents, she had not interviewed the complainant. On its face, this report was also based on comments by the complainant's ex-partner. The complainant gave evidence that she had a difficult relationship with their ex-partner, particularly relating to their daughter. The respondent also relied upon the alleged history in this report as in some way relevant to the issue before the Tribunal. Neither the complainant's ex-partner nor the psychologist were called to give evidence. In the circumstances the Tribunal places no weight upon this report.

Statements in support of the respondent.

56. Some thirty testimonials or statements in support of the respondent were filed, attesting to his care and concern for his patients and his attentive professional relationship with them. Some of these were from other medical practitioners. A number of these testimonials disputed that the respondent could be guilty of the conduct complained of, and doubted the honesty of the complainant. In none of them was it clear that the respondent had made full disclosure of the conduct that he has subsequently admitted before the Tribunal. The Tribunal accepts, and the Board does not dispute, that the respondent is highly regarded by many of his patients, and that he seeks to act in their best interests. The respondent maintains that he has a practice of some 3000 patients.

57. It should be noted that to the extent that testimonials in support of the respondent do not indicate that the respondent has made a full disclosure of the matters which he acknowledges before the Tribunal, they are of limited value. Whether all of those documents would have been provided or what the writers’ views would then have been had the full facts been disclosed can only be a matter of conjecture.

58. The respondent acknowledged that he had been treated for depression over a period of time by a psychologist, and that since 2008, he had been consulting a psychiatrist for depression and anxiety resulting from the issues the subject of this hearing. The respondent also filed a statement from a colleague, indicating that the respondent had taken over a number of nursing home patients as a consequence of the reduction of the colleague’s practice. The Tribunal recognises this as a commitment to patient care in an area where it is sometimes difficult to obtain medical services.

Findings.

59. The Tribunal is satisfied on the evidence of both the complainant and the respondent that from at least about August 2006, the respondent began to have a strong personal attraction to the complainant. In the period up until 4 October 2006, this relationship was developing on a personal level to the point where the proper boundary between doctor and patient in the area of sexual attraction was at risk of being crossed.

60. The doctor-patient relationship did not cease formally until 12 October 2006. Thereafter, the respondent did provide medical services to the complainant on two occasions. By the time that the formal relationship had terminated the substantial relationship of personal attraction that had commenced in at least August 2006 had developed into a sexual relationship between the complainant and the respondent. This sexual relationship commenced on 5 October 2006 by an act which constituted sexual violation within the meaning of the standards statement. The relationship continued in what may be regarded as a "couple relationship" until about March 2007. Thereafter, the relationship deteriorated.

61. In paragraph 71 of his statement of 20 March 2009, the respondent states:
"The fact is, I now believe she was not suffering from the alleged incident at the school in 2002, but, if at all, I believe she is using the system of compensation to facilitate the desire not to work but at the same time fund her studies and art business.------
(The complainant) appeared to me to be a healthy normal woman and if she had an underlying psychiatric condition or personality disorder, it did not make itself obvious to me."
 This is inconsistent with the respondent's own evidence that he continued to issue Comcare certificates giving post traumatic stress disorder as a diagnosis, and with his referral of the complainant to an experienced psychiatrist who has given the evidence set out above. It is also inconsistent with the opinion of the other doctor who gave evidence, and whose training and experience in the area were on the respondent’s own admission substantially greater than his.

62. The respondent was concerned about this developing relationship in August 2006 because of the risks that it posed for him as a medical practitioner. There is no indication that he considered the potential risks to the health and well-being of the complainant, particularly if the relationship should fail, or his ethical obligations to put her interests ahead of his own needs.

63. The respondent's principal concern as the complainant’s treating medical practitioner was not for the emotional well-being of the complainant: indeed the respondent did not seem to have considered the effect such a relationship might have on a woman in the circumstances of the complainant. She was a single mother, socially isolated, separated from and in conflict with the partner of her child. She was not working, and was dependent upon workers compensation payments for her support. Continuation of those payments depended upon the issue of Comcare certificates, certifying that she continued to suffer from a post-traumatic stress disorder. While the Board does not suggest and the Tribunal does not consider that the respondent used the power to give or withhold certificates (thereby ensuring the continuation of the complainant’s financial support) as a lever to gain advantage over her it is in the Tribunal's view a factor which increased the vulnerability of the complainant that arose from the other circumstances of her life. She was under treatment by a psychiatrist for post traumatic stress disorder.

64. The fact that the complainant was keen to advance the relationship provides no excuse for the respondent: indeed the standards statement in clauses 2 and 4 not only makes it clear that this is no defence to a boundary violation, but that the keenness of a patient to engage in the relationship should itself be a warning sign to the practitioner. The Tribunal cannot accept the submission of counsel for the respondent that the complainant was manipulative or insistent that the relationship should be established, and that this somehow excuses the conduct of the respondent. The obligations on the respondent to resist any such pressures (if they were made) lies with him.

65. The only response that the practitioner has provided to the breach of boundary violations is that he felt that he was in love with the complainant and that this blinded him to his obligations. This lack of insight not only led the practitioner to continue the relationship, but has also given rise to the serious consequences of these proceedings.

66. The respondent took active steps to ascertain the standards that bound him as a medical practitioner, by consulting the standards statement together with the New South Wales Medical Board notes. The respondent took advice from a legal practitioner, who provided information indicating that the relationship was a dangerous one. The respondent gave evidence that he did not seek to discuss the matter with the professional officers of the Board because he was aware that they would advise against it and that this would prevent him proceeding with the relationship. The one professional colleague whom he approached the about the issue advised him against it, and the other colleague whom he considered consulting was one that he could not bring himself to talk to.

67. Both the complainant's psychiatrist and her current treating general practitioner gave evidence to the Tribunal that the ban on boundary violation or the establishment of a non-professional personal relationship, much less a sexual relationship, between a doctor and patient was a fundamental breach of professional standards. This was a principle of medical practice that was emphasized to practitioners from the time of training. In the Tribunal's opinion, the evidence indicates that not only was the respondent aware that what he proposed to do was a breach of professional standards, but that he and the complainant structured an "arrangement" to terminate the professional relationship (by use of a backdated letter and card) to try and make it appear that the sexual relationship did not commence until after the professional relationship had concluded. On the evidence, this was not the case. The respondent was still the complainant's general practitioner as of 5 October 2006.

66. The respondent appears to have given no thought to the general principle referred to in paragraph 21 above, indicating clearly that the standards applied in relation to former patients as well as existing patients.

67. Counsel for the board conceded that although the standard statement referred to "former patients," that should not be interpreted as preventing for all time a relationship between a medical practitioner and a former patient. The respondent himself referred to a case where a medical practitioner friend of his had married a patient and had a long and happy marriage. Each case must be judged on its merits. A marriage between a robust and stable patient and a practitioner when a reasonable period of time has passed after the ending of the professional relationship and some discussion with wise colleagues or the medical board has taken place, could be appropriate. Such a situation is not the one facing the Tribunal. For the respondent to use this example as giving him comfort that the relationship with the complainant could be undertaken indicates his lack of insight into the issue.

The Amended Application.

68. The Tribunal is satisfied that the ground set out in Paragraph 1 of the amended application of 3 April 2009 has been made out, as detailed in the following paragraphs. It is the standards statement has set out what kind of behaviour is inappropriate in relation to a health profession. As the Tribunal has found that there are substantial breaches of the standards statement, the respondent is in breach of section 144 (1) of the HR Regulations. As a consequence, there is a ground for occupational discipline in relation to the respondent under section 41 (1) of the HR Act. It should be noted that any one of the three grounds set out in section 41 (1) of the HR Act constitute a ground for occupational discipline. There is no requirement that all of them be satisfied.

69. The Board has sought an occupational discipline order that (amongst other things) the registration of the respondent as a medical practitioner should be suspended for 12 months. As a consequence, the Tribunal must consider the matters set out in section 43 (2) of the HP Act. As indicated in paragraph 68 above, the Tribunal is satisfied that the respondent is a health professional who has contravened the standard of practice that applies to him. It is a serious and fundamental standard of practice, designed to ensure that members of the public who put their trust in a medical practitioner do not have that trust abused by the exercise of authority or influence in inappropriate ways. Having considered the evidence of the doctors who are now treating the complainant, the Tribunal is satisfied of the severity of the breach.

70. The other consideration under section 43(2) (b) that the Tribunal must take into account is whether the health professional has put, or is putting, public safety at risk. The Tribunal is satisfied that on the evidence, the respondent did put the safety of the complainant at risk. The evidence of the psychiatrist treating the complainant is that the commencement of the relationship, the way that it was conducted and the way that it was concluded significantly damaged the mental health of the complainant and the process of recovery from the condition from which she suffered. In the Tribunal's view is not necessary that the public safety of more than one person be put at risk: in the present case the Tribunal is satisfied that the conduct of the respondent put at risk the member of the public, the complainant, who sought his services.

71. The other statutory provision to which the Tribunal must have regard before making an order for occupational discipline against the respondent is section 65 of the ACAT Act. Having been satisfied that a ground for occupational discipline exists against the respondent under section 41 and 43 of the HP Act, the Tribunal is required to consider the matters set out in section 65 (3) of the ACAT Act in considering what occupational discipline to apply.

72. Section 65 (3) (a) requires the Tribunal to consider whether the respondent took reasonable steps to avoid the action that was the ground for occupational discipline. The evidence indicates that far from seeking to avoid the action, the respondent undertook the action deliberately, after receiving advice that it would be a breach of the standards statement, and using steps that he hoped would give him a ground for arguing that there had been no breach.

73. Section 65 (3) (b) requires the Tribunal to consider whether occupational discipline has previously been used against the respondent for a similar act. There was no evidence led to indicate that the respondent had been the subject of an application for an occupational discipline order in the past.

74. Section 65 (3) (c) requires the Tribunal to consider whether the person has taken steps to mitigate the effect of the contravention. The only step that the respondent has taken is to apologise to the complainant in paragraph 3 of his statement of evidence, for the hurt he has caused to her. This apology sits uneasily with the attack on her credibility set out in paragraph 71 of the same statement, and with the allegations in written statements, not supported by any oral evidence, that the complainant has deliberately withheld relevant information on her early history from her medical advisers.

75. Section 65 (3) (d) requires the Tribunal to consider the impact of the contravention on any other person. The evidence from the complainant's treating psychiatrist and present general practitioner is that the sexual violation has had a serious and ongoing effect on the complainant and is affecting her recovery.

76. Section 65 (3) (e) requires the Tribunal to consider the likelihood that the person will act in a way that is a ground for occupational discipline in the future. The Tribunal is concerned that the respondent displayed no real insight into the gravity of the breach of the standards statement. The respondent seemed to be concerned only about the effect on himself, and in the Tribunal's view, his expressions of regret and concern for the complainant (such as they were) were not in the forefront of his mind.

77. Section 65 (3) (f) requires the Tribunal to consider whether the entity bringing the application has applied for particular occupational discipline to be used, and if so, the kind of occupational discipline applied for. The Board has applied for suspension of the registration of the respondent for a 12 month period, and in addition an order that the respondent complete the course in sexual misconduct assessment referred to in the amended application. If the respondent is to resume practice in the future, then in the Tribunal's view there is a need for him to develop a much greater appreciation of the importance of avoiding boundary violations, and of the effect that these violations can have on patients. The Tribunal has regard to the experience of the members of the Board in recommending the order.

78. Having regard to the seriousness of the matters before the Tribunal, it must be comfortably satisfied that the evidence supports each of the particulars necessary to constitute a breach.  The following paragraph sets out the Tribunal's view on the particulars of the ground of complaint in the amended application.

79. The respondent and the complainant acknowledge that the relationship of doctor and patient commenced in about March 2002. Paragraph 1 is made out.
80. Although the respondent relied on a diagnosis by the psychologist treating the complainant, he indicated both in the Comcare certificates and in the referral to the treating psychiatrist who gave evidence, that the complainant suffered from post traumatic stress disorder. Paragraph 2 is made out.

81. The whole of the evidence before the Tribunal indicates that paragraph 3 is made out.

82. While the Tribunal is satisfied that the respondent treated the complainant for medical needs generally, it cannot be satisfied that treatment for post-traumatic stress disorder was provided beyond that referred to in relation to particular 3. It is otherwise satisfied that paragraph 4 is made out.

83.  The Tribunal is satisfied that paragraph 5 is made out, although noting that the relationship developed more strongly since August 2006.

84. The Tribunal is satisfied that paragraphs 6 and 7 are made out.

85. The Tribunal is satisfied that paragraph 8 is made out, at least with effect from August 2006.

86. The Tribunal is satisfied that paragraphs 9,10 and 11 have been made out.

87. The Tribunal is satisfied that the respondent has breached clause 5 of the section of the standards statement headed "Medical Practitioners and Sexual Misconduct."

88. The Tribunal is satisfied that the respondent has breached clauses 3 and 6 of the standards statement "Code of Conduct" in that he both abused his position as a doctor, and established an improper personal relationship with a patient.

Matters in mitigation

89. The Tribunal notes that the testimonials filed on behalf of the respondent attest to his commitment as a doctor to his patients, and that he works long hours in looking after his practice. The respondent gave evidence that he had a practice of some 3000 patients. It is well known in Canberra that there is a shortage of general practitioners, and the suspension of the respondent is likely to impose difficulties on those patients in finding another practitioner to treat their medical needs. This may be a particular problem in the case of providing services to nursing homes and other establishments for elderly people, where the respondent has been prepared to provide services in the past.

90. The Tribunal also takes account of the respondent's evidence that he has in the past been treated for depression, and that the strain of these proceedings has required him to obtain treatment from a psychiatrist in order to continue with his practice. The Tribunal notes that any hearing into the conduct of a professional person who provides services of this nature to the public is likely to cause a very substantial strain.

91. If the respondent was to be suspended, then the need to arrange for his patients to obtain other medical advice would cause them great disruption and difficulty. The respondent would have to give some explanation to them as to why he was unable to continue to treat them, which would be a matter of shame and embarrassment to him. The subsequent loss of income would have a very substantial effect on him. The Tribunal has given consideration to all of these matters.

Similar Authorities.

92. Counsel for the Board referred the Tribunal to a number of decisions involving disciplinary proceedings against medical practitioners. The legislative and professional standards varied between these cases, but all of them emphasise the gravity of boundary violations between doctor and patient in sexual cases, and the need to protect the good name and standing of the profession by taking appropriate disciplinary steps to reflect the gravity of the matter. This is done not simply to protect the position of doctors within society, but to send a message to members of the public that they can have confidence in the intimate professional relationship between a doctor and patient, and that the profession and the tribunals charged with regulating the profession will take these matters seriously.

93. Without referring in the body of these reasons to all of the cases, which the Tribunal has considered in the course of reaching this decision, the proper role of the Tribunal is well set out in paragraph 175 of the decision of the Medical Tribunal of New South Wales in the case of Health Care Complaints Commission vs. Dr Mark Clifford Fairbrother (18 December 2008) Case No. 40020 of 2007.
The relevant paragraph reads as follows:

“The jurisdiction of the Tribunal is a protective not punitive one. The purpose of disciplinary proceedings is to maintain proper ethical and professional standards in protection of the community and also to protect a good standing and reputation of the profession. The object of protecting the public includes deterring the practitioner from repeating his misconduct and deterring others who might be tempted to behave in a similar way. The role of the Tribunal is also to ensure that public and professional colleagues can place their confidence in the practitioner. In the Law Society of New South Wales v. Foreman, (1994)34 NSWLR 408 at 441B, 471B it was said
"One element of deterrence is providing an assurance to the public that serious lapses in the conduct of --- practitioners will not be passed over or lightly put aside, but will be appropriately dealt with.”

Decision

94. The Tribunal considered that a fine or reprimand was an inappropriate penalty for a serious breach of the respondent’s obligations. A period of suspension would not only indicate to the community and the medical profession that the Tribunal regarded the matter seriously, but would also provide a period of time in which the respondent could address and be counselled about the issues in his own life that had led to the inappropriate conduct. Material about the Sexual Misconduct Assessment Service was provided to the Tribunal by the Board. The Tribunal considered that the Service would be appropriate to assist in the rehabilitation of the respondent prior to his return to practice.

95. Before the respondent returns to practice, the Tribunal considers that it would also be appropriate for the Board to consider and if it thought fit require the respondent’s participation in its supervisory and assistance programs such the Doctors Support Program. The Tribunal considers that the circumstances of the respondent working as a sole practitioner with a very heavy patient load and insufficient opportunities to discuss professional matters with his colleagues may have contributed to the circumstances of the complaint. The Tribunal suggest this course of action as a way of assisting the respondent to return to a fully functional professional life, rather than as a disciplinary matter. Prior to the respondent's return to professional life at the end of the period of suspension, the Board would also be need to be satisfied on its usual criteria that he is an appropriate person to practice medicine in the Territory.

96. The decision of the Tribunal is that the suspension of the respondent for a period of 12 months is an appropriate order to be made in this case. In addition, the Tribunal also orders that the respondent is to attend and complete the course in Sexual Misconduct Assessment, as directed by the Board, through the Sexual Misconduct Assessment Service of the Royal Melbourne Hospital in Victoria before becoming eligible for the lifting of the suspension.

97. As indicated in paragraph 91 above, the Tribunal is conscious that the suspension of the registration of the respondent will cause difficulty not only to him but to his patients in finding an alternative practitioner. To give the respondent some time to advise them of the need to do so and to make arrangements to hand over the records, the Tribunal directs that the order for suspension is to take effect one month after the date of delivery of these reasons for decision.

………………………………..

Mr C G Chenoweth

Presiding Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      HP 08/5

APPLICANT:                ACT MEDICAL BOARD
RESPONDENT:            THE MEDICAL PRACTITIONER

COUNSEL APPEARING:       APPLICANT:          MR G MCCARTHY

RESPONDENT:      MR C MCKEOWN

SOLICITORS:  APPLICANT:          

RESPONDENT:      

OTHER:  APPLICANT:          

RESPONDENT:      

TRIBUNAL MEMBER/S:        MR C G CHENOWETH       Presiding Member

DR A MCINTOSH                Member

MS D LUCAS  Member

DATE/S OF HEARING:          15-19 JUNE 2009      PLACE: CANBERRA

DATE/S OF DECISION:          25 SEPTEMBER 2009PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )        CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS: