Craig v Medical Board of South Australia

CRAIG v THE MEDICAL BOARD OF SOUTH AUSTRALIA
[2001] SASC 169
Full Court: Doyle CJ, Williams and Martin JJ

DOYLE CJ The Medical Practitioners Professional Conduct Tribunal (“the Tribunal”) heard a complaint against Dr Craig, a registered medical practitioner and psychiatrist. The complaint was made by the Medical Board (“the Board”). The complaint alleged that he was guilty of unprofessional conduct in the practise of medicine. At the hearing, Dr Craig admitted that one of the incidents alleged against him had occurred, and amounted to unprofessional conduct. In circumstances that I will explain in due course, the Tribunal found that other incidents alleged against him also amounted to unprofessional conduct.
The Tribunal decided that Dr Craig’s registration should be suspended for a period of six months. The Tribunal ordered that when he returned to practice, he should be supervised by the Board for a period of time not exceeding one year. It ordered that Dr Craig meet the cost of that supervision.
On appeal to this Court, Dr Craig does not challenge the findings of unprofessional conduct. He, however, criticises the failure of the Tribunal to make a clear finding as to the unprofessional conduct found against him, and the manner in which it dealt with the effect of his conduct on the patient in question. But the main issue on appeal is the complaint that the Tribunal erred in deciding that his registration should be suspended.
The appeal lies to this Court under s 66 of the Medical Practitioners Act (SA) 1983 (“the Act”). The Court has the usual powers of an appellate court to affirm, vary or quash the orders made by the Tribunal.
The complaint
Dr Craig treated Ms A for anorexia nervosa. When the treatment began she was about 20 years of age. Ms A was suffering also from low self-esteem and depression, and had a dependent personality. Her condition was serious enough to require hospitalisation. Dr Craig began to treat her when she was in hospital. She was in hospital from early June 1987 until early August 1987. The treatment continued after she left hospital. It appears that what was described as “active treatment” by Dr Craig ended in about March 1989, but contact between Ms A and Dr Craig continued until late 1990. In all, contact between Ms A and Dr Craig continued for a period of about three years. Whether a doctor/patient relationship existed after the termination of “active treatment” is not entirely clear, but in the end does not matter.
The complaint before the Tribunal alleged improper and unethical conduct between June 1987 and the end of 1990. The complaint was based on the relationship that developed between Dr Craig and Ms A.
The complaint contained detailed particulars of the facts relied on. Helpful as this is, I must say that I consider that the complaint was drawn in a manner that could be improved. The complaint began by alleging unprofessional conduct in general terms. Then it alleged formal matters, and that Dr Craig had treated Ms A. It then alleged an obligation on Dr Craig, in effect, to act ethically and properly. It then alleged, in considerable detail, facts which were obviously intended to be particulars of unprofessional conduct. It concluded with eight separate allegations of unprofessional conduct. The relationship between these separate allegations, and the earlier allegation of an obligation to act ethically and properly, is not clear. Nor are the facts which are particularised linked to any of the concluding allegations of unprofessional conduct. It is not clear whether each of the facts alleged is relied upon in relation to each of the allegations of unprofessional conduct, or whether some of the facts are relied upon in relation to some only of the allegations of unprofessional conduct. In the end, nothing turns on this, but it would have been better if the facts alleged had been tied more closely to specific allegations of unprofessional conduct, and if the allegations of unprofessional conduct had been made in one part of the complaint, rather than in three different parts of the complaint as they are.
Be that as it may, the substance of the allegation against Dr Craig was that he failed to observe a proper professional relationship in his dealings with Ms A. The allegation was that he behaved towards Ms A in a manner consistent with a close personal friendship. Indeed, even this does not fully convey the nature of the allegation. The friendship was one which would be regarded as intimate, although there is no suggestion of a sexual relationship. The allegation of unprofessional conduct is based on a number of matters particularised in the complaint. They include physical contact between Dr Craig and Ms A, such as hugging her; kissing her; expressions of love and affection; the giving of personal gifts; accompanying Ms A on social outings including overnight stays; photographing Ms A; sending her affectionate messages; and, sending her flowers. Most of this conduct was admitted by Dr Craig.
The Tribunal proceedings
Before the Tribunal the Board relied on opinions expressed by Dr Ellard, a psychiatrist with expertise in matters of medical ethics and professional conduct. A written opinion from him was tendered to the Tribunal. In his opinion, Dr Ellard dealt with the categories of conduct alleged against Dr Craig. I will not set out the whole of his letter, but the following portions are of particular importance:
“…
Doctors set the time and place of their meetings with their patients and charge the patients a fee. It is not a meeting of equals. Furthermore the patients’ attendance usually signifies that they have a need while it is assumed for the purpose of the meeting that the doctor has no needs at the time.
Under conditions such as these patients are vulnerable to exploitation and there must be boundaries which determine the doctor’s role and behaviour in the relationship. Furthermore it is important that the patients are in no doubt that the doctor’s behaviour is appropriate. If a doctor is about to suggest something unexpected then there must be a full explanation and the patient must consent.
…
Psychiatrists have special duties because of the nature of their work. There is prolonged contact and it is often necessary for patients to discuss details of their thoughts and behaviour of an intimate kind. Moreover strong feelings are often aroused within the patient – feelings of sexual attraction, hatred, or of a wish for a closer relationship. Because of this it is necessary for the psychiatrist to be as neutral a person as is reasonably possible so that very strong feeling of this kind are necessarily distortions engendered by the patient’s psychopathology and not the psychiatrist’s behaviour.
Physical contact in general should not occur.
…
There is then the question of meeting a patient outside one’s office. This is quite proper in some forms of behaviour therapy. For example, if I had a patient with a phobia of elevators I would not hesitate to accompany the patient riding up and down in one of the elevators in the building in which I work. It would be absolutely clear to the patient why I was doing it and it could not be mistaken as a desire for greater intimacy.
…
Another issue is the question of what is proper after therapy has ended. It is generally accepted that even though psychotherapy may finish there are almost certainly strong feeling still unresolved and that the patient may well be vulnerable to a therapist at the end of therapy. For this reason the initiation of a relationship of any degree of intimacy at the end of therapy is improper.
…
On page 16 [Dr Craig’s Statement] it is clear that he has a defective understanding of professional boundaries. He says that his relationship developed into ‘a good friendship’ and in the bottom paragraph it seems that he felt that one could have both relationships at the same time. This sort of ambiguity is extremely unwise.”
Dr Ellard concluded by expressing the opinion that the behaviour alleged against Dr Craig “would attract the very firm disapproval of psychiatrists of good standing and competence”.
The Tribunal also received evidence in the form of an opinion from another psychiatrist, Dr Gilchrist. He, consistently with Dr Ellard, made the point that unconventional approaches to treatment must be managed in a manner that does not involve conflict with standards of professional conduct. He also emphasised the need for patients suffering from anorexia nervosa to be encouraged to develop needed skills themselves, rather than have someone do it for them “by providing inappropriate support that can occur in relationships”.
The Tribunal also received in evidence the Code of Ethics of the Royal Australian and New Zealand College of Psychiatrists, and an annexed document containing “Ethical Guidelines”. The Tribunal accepted as established and relevant the following principles appearing in Guideline 8, dealing with sexual relationships with patients. I emphasise that there was no finding of a sexual relationship in this case, and that the Tribunal drew upon the relevant statement recognising that, but applying it to involvement in a patient’s emotional life. The statements are as follows:
“5.…The more deeply the psychiatrist becomes involved in the patient’s emotional life the more certain is the impossibility of a subsequent equal relationship. Mutual termination of a therapeutic relationship does not ensure the resumption of an equal relationship. Following long term psychiatric treatment, this is never possible.
6.However, recognising the problems of formulating absolute rules, any psychiatrist contemplating an intimate relationship with a former patient is strongly advised to consult a properly constituted body of colleagues, bearing in mind that at all times the psychiatrist may be called upon to defend his/her conduct in the judicial context of a medical board/council hearing.”
I now need to explain in a little more detail how the matter proceeded before the Tribunal.
At the beginning of the hearing Mr Kourakis QC, appearing for Dr Craig, acknowledged that Dr Craig was guilty of unprofessional conduct in one respect. He admitted that Dr Craig took Ms A away for a holiday weekend in Daylesford, and arranged accommodation for both of them in a family home, each of them sharing the same bedroom which was provided with one double bed. On that occasion Ms A slept on the floor, on her own insistence. This was one of the matters particularised in the complaint. He indicated that there was no dispute as to many of the other facts alleged, but it was plain at that stage that there was no other admission of unprofessional conduct.
Mr Stevens, counsel for the Board, then outlined in considerable detail the facts alleged against Dr Craig, and the basis of the case. As I have already indicated, in a nutshell the basis of the case was that the relationship that Dr Craig developed with Ms A was unprofessional, and that for his own purposes he pursued a close personal relationship with Ms A.
Mr Kourakis then outlined Dr Craig’s case. It seemed to be that Ms A ceased to be his patient in March 1989, when “active treatment” ceased, and the contact that occurred between them thereafter (which was largely admitted) was in the course of a friendship with Ms A that flowed in part from the fact that Dr Craig was friendly with Ms A’s father.
The events at Daylesford seem to have been accepted to be of a different order by Dr Craig. This was said by Mr Kourakis to be because of the intensity of the “pre-existing therapeutic relationship”, and because of her condition. For that reason he accepted that it was unprofessional conduct to go on that trip and to stay overnight with Ms A. Nothing else was accepted as unprofessional conduct. Dr Craig maintained that treatment finished in March 1989, and that any subsequent contact was as a friend with “particular psychiatric knowledge”. He accepted that it would have been better if the position had been made clearer, but maintained that what occurred after March 1989 was not unprofessional. Dr Craig admitted a personal friendship with Ms A, but denied that it was for his own gratification.
Counsel then conferred. After some time Mr Kourakis informed the Tribunal that an agreement had been reached “in principle”. Dr Craig now acknowledged that “his contact has been motivated at different periods by a developing friendship”. He also now acknowledged that Dr Ellard’s report “establishes the parameters of the professional conduct objectively and that to the extent that there has been on the facts… a breach of those, there was unprofessional conduct”. The matter was then adjourned to enable counsel to come to a more precise arrangement or agreement.
Some days later the Tribunal reconvened. Mr Stevens informed the Tribunal that Dr Craig admitted unprofessional conduct:
“…which is based upon his acceptance that the ethical principles to be applied to the matter are those which are set out in the report of Dr Ellard.”
As to the relationship with Ms A, Mr Stevens added:
“Dr Craig also accepts that his admitted behaviour towards the patient was motivated by a desire to pursue a personal friendship with the patient for his own benefit, as well as the desire to help the patient with her psychiatric difficulties.”
On that basis, he indicated that the Board would not press for findings on the matters of fact alleged by Ms A but disputed by Dr Craig. A statement by Ms A had been tendered to the Tribunal, and had been edited to remove from it all disputed material.
It should be noted that, until Mr Kourakis made the initial concession, Dr Craig had apparently maintained that what he did was proper, and was simply part of friendly assistance intended to help Ms A with her condition. That is subject to the admission at the outset that the Daylesford trip involved unprofessional conduct. The earlier admissions of affectionate and apparently intimate behaviour, had been justified in a manner summarised by the Tribunal as follows:
“This admission was also in the context of the patient requiring assistance with social interaction having regard to her underlying condition. The Respondent said his friendliness and informality were part of his therapy, designed to support the patient in being able to undertake relationships, including relationships with young men. All allegations of personal or sexually directed intimacy aimed at the patient were denied by the Respondent.”
The efforts by the parties to resolve the matters without requiring Ms A to give evidence are commendable. In the end, a considerable amount of time was saved, and Ms A was spared an experience that would undoubtedly have been distressing. The parties left it to the Tribunal to apply Dr Ellard’s opinions to the admitted facts. It would have been better if the parties had reached agreement on what conduct was unprofessional, and how.
Unfortunately, the end result was a failure by the Tribunal to make clear findings as to what constituted the unprofessional conduct that it found Dr Craig had committed. It would have been better if the Tribunal had made specific findings, linked to the allegations in the complaint.
However, I am satisfied, having considered the reasons of the Tribunal carefully, that the position is clear enough. For example, the Tribunal said:
“When considering the Respondent’s behaviour towards the patient, both before and after March 1989, Dr Ellard expressed the opinion that to consider that a therapeutic relationship has developed into a good friendship is to have a defective understanding of professional boundaries. The continuation of the relationship on this basis can only heighten the patient’s ambiguity. Clearly, from the exhibits, that is what has occurred here.
We respectfully adopt Dr Ellard’s statements of principle and the application of them to the admitted factual matters. By his concession as to the correctness of Dr Ellard’s ethical statement, we take the Respondent to have similarly conceded, thus forming the basis for the Board’s concession as to fact finding.
In this context it is important to note Ethical Guideline 8 from within Exhibit P27. [The Tribunal then set out the portion of the Guidelines that I have set out above.]
This is something which Mr Kourakis acknowledged on behalf of the Respondent in the context of the relationship which he allowed to develop with the patient (T 37). His subsequent submission, notwithstanding that acknowledgment, that in the circumstances of this particular case, during the period of active treatment (i.e. until March 1989) there was no such unprofessional conduct, is not acceptable. Plainly, in the same way as the trip to Daylesford in June 1990 was unprofessional, so was the earlier behaviour of the Respondent towards the patient which he sought to describe generally as informal and encouraging.
Consequently, upon the Respondent’s admissions and after application of the accepted and correct ethical principles, we are satisfied that the Complaint is proved both as to the Daylesford incident and to those incidents which are admitted by the Respondent and which are obviously a product of his desire both to treat and befriend the patient.”
My conclusion is that the Tribunal found that before “active treatment” ceased in March 1989, and thereafter, Dr Craig encouraged and maintained an intimate personal friendship with Ms A. It was a friendship in which each of them expressed personal emotions to the other. Although no sexual relationship occurred, on Dr Craig’s part the relationship had romantic overtones. It is not surprising that the Board treated this conduct as unprofessional conduct.
I interpolate here that the dangers of such conduct are obvious, from the material before the Tribunal. Ms A was young and, because of her condition, very vulnerable. The use of a professional relationship to cultivate a friendship for Dr Craig’s own gratification, albeit also with the desire to help her with her psychiatric difficulties, was to exploit her dependence and vulnerability. As Dr Gilchrist observed, this sort of conduct was unlikely to help Ms A overcome her own difficulties.
Evidence before the Tribunal indicates that Dr Craig’s conduct at times caused Ms A to feel confused and upset. The Daylesford trip is an example of this. In Ms A’s statement she records that after the relationship ceased at the end of 1990, she came to see that he had abused her trust in him, or at least that is how she saw it. She felt hurt and upset. It was only some years later that she decided to complain about his conduct. She records in her statement that in 1995 she was “still struggling with the issue of Dr Craig”. It is clear from her statement that it took her a number of years to return to a state in which she regarded herself as well.
In relation to this aspect of the matter, the Tribunal said:
“We are not satisfied that there is any evidence which shows that the Respondent deliberately kept the patient in a labile emotional state over a period of years in order to ensure her dependence upon him so as to gratify his need for a close personal relationship with her. Rather, we are of the view that the Respondent allowed himself to become too supportive of the patient and failed to see the need to reverse or end his relationship with her, instead allowing it to merge into what he saw as a supportive friendship. There is no doubt that in so doing, emotional trauma was caused to the patient. The entries in her diary, which were tendered in evidence by consent, are clearly indicative of this (Exhibit P26).”
Some time was spent before the Tribunal and before this Court on the issue of whether Dr Craig had harmed Ms A by his conduct. It appeared to be more or less common ground that Ms A was confused and upset and angry at times during the relationship, and particularly after the relationship was ended and she reflected on it. But there is also the issue of whether her condition was worsened by what he did, or whether her recovery was delayed.

It appears that the Tribunal was of the view that the likelihood was that Ms A’s recovery was at least delayed. However, the passage in which the Tribunal deals with this matter was rightly criticised by Mr Peek QC, counsel for Dr Craig on the appeal. The manner in which the Tribunal expresses its views is such that one cannot be sure what the Tribunal has decided, and there is a distinct possibility of it having reversed the onus of proof.
I consider that this issue can be put to one side. There is no doubt that Dr Craig’s behaviour caused Ms A upset and distress. There is no doubt that the relationship which developed was one that carried with it a very real risk of delaying Ms A’s recovery. Upon the evidence, it is impossible to reach a conclusion whether or not that occurred. For present purposes it suffices to proceed on the basis that Dr Craig embarked on a course of conduct that carried with it a real risk of harm to Ms A.
Having concluded that Dr Craig was guilty of unprofessional conduct, the Tribunal turned to consider the action that it should take. Its powers included the power to reprimand, to impose a fine not exceeding $5,000, to impose conditions restricting the right to practise medicine, to suspend registration or to cancel registration.
The Tribunal described Dr Craig’s acknowledgment of unprofessional conduct as “belated”. I agree. Ms A did not complain until September 1997. A copy of the complaint was sent to Dr Craig on 7 October 1997. He replied on 19 October 1997. He was interviewed at length in connection with the complaint on 7 August 1998. The formal complaint was made in October 1999. The hearing began, and the admission was made, on 11 December 2000. Dr Craig had plenty of time to reflect on his conduct, and his acknowledgment came very late in the piece.
The Tribunal noted that Dr Craig became a member of the College of Psychiatrists in 1968. He had worked as a psychiatrist since then. Since about 1997 his practice had changed. He moved to an area of practice that, according to the Tribunal, took him “away from the high risk emotionally charged area involving young children and dependent young adults”. No other complaints had been made against Dr Craig.
The Tribunal approached the matter on the basis that Dr Craig thought that there had been a change from patient to friend from about March 1989. The Tribunal was satisfied that Dr Craig had not maintained “a knowing and continuing professional relationship”. The Tribunal said:
“The incidents of the relationship point far more to a supportive friendship than to a professional relationship deliberately extended beyond its proper bounds. This is consistent with the Respondent’s present acknowledgment that his breach of accepted ethical parameter amounted to unprofessional behaviour.
…
We are not satisfied that there is any evidence which shows that the Respondent deliberately kept the patient in a labile emotional state over a period of years in order to ensure her dependence upon him so as to gratify his need for a close personal relationship. Rather, we are of the view that the respondent allowed himself to become too supportive of the patient and failed to see the need to reverse or end his relationship with her, instead allowing it to merge into what he saw as a supportive friendship.”
As I noted earlier, the Tribunal suspended Dr Craig’s registration for six months. It did not really explain why it took this course. It simply said that it was doing so “in all of the circumstances” for the protection of the public. It also ordered that Dr Craig submit to supervision for a period not exceeding one year.
Issues on appeal
Mr Peek QC, counsel for Dr Craig on appeal, did not challenge the findings of unprofessional conduct.
He was critical of the failure of the Tribunal clearly to identify the finding of unprofessional conduct made against Dr Craig. I have explained why I consider that the finding is clear enough for present purposes. He complained about the ambiguous finding about the possible effect of the relationship on Ms A. I have explained why this problem can be put to one side.
The main complaint was that the order suspending Dr Craig’s right to practise was wrong. Mr Peek pointed to the matters already noted: the conduct involved only one patient; there had been no repetition; 10 years had passed without any other complaint being made; Dr Craig’s area of practice had changed; Dr Craig had acknowledged his error; his conduct amounted to inappropriate “supportive friendship” and not deliberate abuse of the doctor/patient relationship; and, Dr Craig had not deliberately exploited Ms A’s emotional state.
Mr Peek pointed to the fact that the Tribunal accepted a submission by Mr Stevens that “the protection of the public includes the need for general and personal deterrence”. He submitted that the matters just identified by me, all of which were accepted by the Tribunal, demonstrated that there was no need for any element of personal deterrence. He added that Dr Craig had already suffered the adverse effects of media publicity. He submitted that general deterrence plays no part in disciplinary proceedings. The Tribunal had not explained why it suspended Dr Craig’s right to practise. In the light of all that he submitted that there was no basis for a deterrent approach, and that the order for suspension could not be supported.
Mr Stevens supported the decision of the Tribunal. He emphasised the belated acknowledgment of wrongdoing by Dr Craig. He submitted that Dr Craig’s conduct was so obviously wrong that the belated acknowledgment must have given rise to a real concern on the part of the Tribunal about Dr Craig’s understanding of his obligations. He submitted that there was a need to reinforce to Dr Craig the importance of the obligations that he accepted as a psychiatrist. He pointed to the fact that the unprofessional conduct had extended over about three years. He emphasised that Dr Craig had, whether consciously or not, exploited the vulnerability of Ms A. He submitted that suspension was required to bring home to other members of the profession the seriousness of the conduct. It was also required to assure the public that serious lapses in professional standards would not be tolerated.
Was the Tribunal’s decision erroneous?
The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.
In New South Wales Bar Association v Evatt (1968) 117 CLR 177, in a much cited passage, the High Court found that the conduct in question demonstrated that the practitioner was unfit to practise as a barrister, and then went on to say (at 183-184):
“The Supreme Court thought, moreover, that as the exercise of its disciplinary powers was, to some extent, a punishment for wrongdoing, mercy might be shown towards a young man who had not understood the error of his ways. The power of the Court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved. This has already been pointed out by this Court in Clyne v. N.S.W. Bar Association (1960) 104 C.L.R. 186, at pp. 201, 202. The respondent’s failure to understand the error of his ways of itself demonstrates his unfitness to belong to a profession where, in practice, the client must depend upon the standards as well as the skill of his professional adviser.
Accordingly, the Supreme Court was, clearly, in error in deciding to suspend the respondent from practice rather than to disbar him, and it is the duty of this Court to correct that error.”
Apart from emphasising that the purpose of disciplinary proceedings is the protection of the public, and not punishment for wrongdoing, this passage makes the point that sometimes the protection of the public will require the making of an order with a greater adverse effect on the practitioner than might be warranted if punishment alone were the relevant consideration. The protection of the public did not permit mercy to be shown in that case.
This statement by the Court has often been cited as stating the basis upon which orders are made by professional disciplinary tribunals. A contrast is often drawn between orders made for the protection of the public, against professionals who have departed from proper professional standards, and orders or sentences by way of punishment as part of the administration of the criminal law.
While there is a fundamental difference between an order made by a professional disciplinary tribunal for the protection of the public, and a punishment imposed by a court administering the criminal law, disciplinary orders made by professional bodies may nevertheless have elements in common with criminal sanctions.
In the case of a professional disciplinary tribunal, an obvious type of order protective of the public is an order cancelling the registration or recognition of a person as a member of a profession. Such an order removes the right to practise in the profession, thereby protecting the public against a person found unfit to be a practitioner. And, as Evatt shows, such an order will be made even though, if punishment of the practitioner were the only consideration, considerations of mercy might lead to a less severe order.
In other cases the protection of the public or the public interest may justify an order intended to bring home to the practitioner the seriousness of the practitioner’s departure from professional standards, and intended to deter the practitioner from any further departure. A fine might well be imposed with this object. An order imposing a fine might look like a punishment imposed by a court exercising criminal jurisdiction, but in professional disciplinary proceedings it is imposed on a different basis. An order might also be made in professional disciplinary proceedings to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. In the latter case the order is made in part to protect the profession, by demonstrating that the profession does not allow certain conduct. This, in the end, is also in the public interest.
I make these points merely to emphasise that the protection of the public has various aspects. The public may be protected by preventing a person from practising a profession, by limiting the right of practise, or by making it clear that certain conduct is not acceptable. These are merely illustrations of the sort of order that may be called for.
As I have already said, in this case the Tribunal suspended Dr Craig’s right to practise for a period of six months. It ordered that he undergo a period of supervision, upon his return to practise, for a period not exceeding 12 months.
The Tribunal did not explain why it made this order. It should have done so. Because it did not do so, it is necessary to deduce from its reasons the basis for the order for suspension.
Before making its order, the Tribunal referred to a number of matters. It referred to the fact that Dr Craig had practised since 1968, that since his contact with Ms A his practice had changed and did not now involve young children and dependent young adults; it noted that 10 years had passed since the conduct in question, with no repetition of the conduct; it noted that the conduct involved only one patient; it noted the belated acknowledgment of wrongdoing; it made a finding that this was not a deliberate breach of the professional relationship but rather a case of Dr Craig allowing himself to become too supportive of the patient and failing to see the need to end his relationship with her.
The Tribunal said that there was no need to cancel Dr Craig’s registration. Clearly enough, the Tribunal was not of the opinion that he was unfit to practise.
The Tribunal might have made its order to deter Dr Craig from any repetition of the conduct in question. The reference to the belated acknowledgment might suggest a doubt by the Tribunal about Dr Craig’s recognition of and commitment to proper standards. There might also have been an element of emphasising to Dr Craig that his action was wrong. However, if the Tribunal doubted the genuineness of Dr Craig’s acknowledgment, or his willingness to adhere to proper standards, it should have said so. The fact that it has not said so makes me think that this is not the basis upon which it made its order. As well, the general tenor of the Tribunal’s remarks is that there is no risk of repetition. The tenor of the Tribunal’s remarks is that the conduct arose out of a unique set of circumstances.
Arguing along these lines, Mr Peek submitted that there was no justification for the suspension order made, because it could not be supported on the basis of deterring Dr Craig from repetition of his conduct. I accept that submission by and large.
But Mr Stevens submitted that it was proper to make the order to deter other practitioners from similar conduct. He suggested that such breaches of professional standards were not uncommon. But there was no satisfactory evidence of this before the Tribunal, and no hint of this as a factor in the Tribunal’s reasons. I do not accept this submission.
Nor is there any reason to think that the purpose of the suspension was to permit Dr Craig to undergo a period of professional training, directed at the areas in which his conduct had been deficient. There is no suggestion of that.
If the order is to be supported in point of principle, it seems to me that it must be supported on the basis of protecting the profession and maintaining public confidence by emphasising to the profession and to the public that Dr Craig’s conduct was not acceptable and would be dealt with severely, even though the conduct did not demonstrate that Dr Craig was unfit to practise. An order on this basis has a punitive aspect, but as I have already explained, it may be justifiable even though the public does not require protection from Dr Craig. Mr Stevens sought to support the order on this basis.
I consider that in principle the order can be supported on this basis. The misconduct was serious. It was the sort of conduct which could shake the confidence of the public in the profession of psychiatry if it were not dealt with firmly. The Court should also recognise that the Tribunal includes members of the medical profession, and they are entitled to use their own knowledge of what is required to maintain public confidence in their profession.
But even if the order made is supportable in point of principle, was it excessive, in the sense of being substantially more than was required to achieve the relevant purpose?
This is the part of the case that I have found most difficult. Once again, this Court must bear in mind that it should interfere only if the penalty is excessive. The Tribunal is required to make its own assessment of what is required by way of a disciplinary order. This Court intervenes only to correct an error.
In relation to this aspect of the matter Mr Peek pointed to the delay that had occurred since the relationship with Ms A ceased, and since she complained in 1997. In my opinion the delay is not a matter to be given any significant weight. When the purpose of the order is the protection of the public, the main relevance of delay is that the absence of any complaint during the period of the delay might indicate that the public does not require protection from the practitioner. But delay, and the fact that the practitioner may have had the matter hanging over the practitioner’s head for some time, has no real weight in deciding what the public interest requires.
Mr Peek also drew to the Court’s attention evidence put before a Judge of this Court when Dr Craig sought a stay of the Tribunal’s order. In broad terms, the effect of that evidence was to suggest that if Dr Craig’s right to practise was suspended, existing patients would suffer because of real difficulty in finding other psychiatrists to treat them, and in particular psychiatrists to whom the patients were willing to turn for treatment. Mr Stevens objected to the use of this material on the basis that its use was not foreshadowed by the Notice of Appeal, and on the basis that it was material that could and should have been put before the Tribunal on the question of penalty. In one sense, of course, the material could not have been put before the Tribunal, because it related to events that occurred after the Tribunal made its order. But, in my opinion, suspension should have been seen as a possible outcome of the hearing before the Tribunal, and if Dr Craig wished to put a case based on the impact of that suspension on his patients, that case should have been put to the Tribunal. In any event, while I would not regard the impact on Dr Craig’s patients as irrelevant, it is again a matter of limited weight when considering what is required in the public interest. Finally, I agree with Mr Stevens that it is too late in the piece for Dr Craig to seek to rely on the relevant affidavits. The Board has not had an opportunity to answer this material. For all those reasons, the most I am prepared to do is to proceed on the assumption that the imposition of a suspension will disrupt the treatment of Dr Craig’s patients, and is likely to cause some of them inconvenience. As to that, there is no reason to think that the Tribunal would have overlooked this factor in deciding to make its order.
Having dealt with those matters, I return to the fundamental question of whether the order was excessive.
I am not satisfied that it was. I consider that Dr Craig’s conduct was conduct of a kind that might well shake the public confidence in the profession of psychiatry, were it not dealt with firmly. It was conduct which called for an emphatic indication of the Tribunal’s disapproval, and of the profession’s disapproval. Although Dr Craig’s acknowledgment of wrongdoing was accepted as genuine, and there was no need to deter him from repeating his conduct, it was appropriate for the Tribunal to emphasise to Dr Craig the seriousness of his conduct.
The order for supervision requires separation consideration. The Tribunal ordered that Dr Craig:
“… be subject to supervision as to the nature of his practice so as to exclude patients with the condition of anorexia nervosa and further, as to the manner of the making and content of his clinical notes. This supervision is to be undertaken by the Board or its nominee for a period of time in its discretion, but not to exceed one year. Reasonable costs of such supervision are to be met by [Dr Craig].”
The Tribunal should fix the period for which Dr Craig is to be supervised, rather than leaving that to the Board. This is an important part of the order of the Tribunal, and the Tribunal should determine the scope of its order. Similarly, the Tribunal should not leave it entirely to the Board to determine the kind and level of supervision. The Tribunal should require the Board to submit to it a proposal for supervision of Dr Craig, identifying in reasonable detail the way in which supervision is to be undertaken. The Tribunal should then determine whether or not that supervision is satisfactory. The Tribunal should then make that proposal part of its order. Proceeding in this way will reduce the risk of a dispute about whether the Tribunal’s order has been complied with.

For that reason I would allow the appeal, but only for the purpose of setting aside the order relating to supervision. I would order that the matter be remitted to the Tribunal to revisit its supervision order and to determine the period of supervision, and the manner in which the supervision is to be undertaken by the Board or its nominee.
WILLIAMS J I agree.
MARTIN J For the reasons given by the Chief Justice, I agree with the orders he proposes.

[2001] SASC 169

25 May 2001