MEDICAL BOARD OF AUSTRALIA and FORGIONE - [2022] WASAT 67

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 (WA)
CITATION:   MEDICAL BOARD OF AUSTRALIA and FORGIONE [2022] WASAT 67
MEMBER:   JUDGE K GLANCY, DEPUTY PRESIDENT
DR E MARILLIER, MEMBER
MS C CONLEY, MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   8 AUGUST 2022
FILE NO/S:   VR 98 of 2021
BETWEEN:   MEDICAL BOARD OF AUSTRALIA
Applicant
AND
NICHOLAS SALVATORE FORGIONE
Respondent

Catchwords:

Medical practitioner - Disciplinary proceedings - Professional misconduct - Sexual misconduct - Determination of appropriate penalty - Reprimand and disqualification from applying for registration for four years - Payment of contribution towards applicant's costs

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 3, s 4, s 5, s 31, s 39, s 41, s 193, s 195, s 196, s 196(1)(b)(iii), s 196(2), s 196(4)(a)
Medical Act 1894 (WA)
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2)

Result:

The respondent was disqualified from applying for registration for a period of four years.
The respondent to pay a contribution towards the applicant's costs of $11,000.

Category: B

Representation:

Counsel:

Applicant	:	Mr J Papalia
Respondent	:	In Person

Solicitors:

Applicant	:	Australian Government Solicitor - Perth
Respondent	:	N/A

Case(s) referred to in decision(s):

Chiropractic Board of Australia and Ebtash [2020] WASAT 86
Chiropractic Board of Australia and Ebtash [2020] WASAT 86 (S)
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate & Ors [2015] HCA 46; 326 ALR 476
Health Care Complaints Commission v Mooney [2021] NSWCATOD 206
Lal v Medical Board of Australia [2018] WASCA 109
Medical Board of Australia and Costley [2013] WASAT 2; (2013) 83 SR (WA)
Medical Board of Australia and Lal [2019] WASAT 13
Medical Board of Australia and McCarthy [2020] WASAT 12
Medical Board of Australia and McCarthy [2020] WASAT 12 (S)
Medical Board of Australia and Nuttall [2017] WASAT 58 (S)
Medical Board of Australia and Pepulani [2021] WASAT 128
Medical Board of Australia and Singh [2017] WASAT 33 (S)
Medical Board of Australia v Bradshaw (Review and Regulation) [2020] VCAT 584
Medical Board of Western Australia and Smith [2006] WASAT 213
Nursing and Midwifery Board of Australia and Jackson [2013] WASAT 140
Nurses and Midwifery Board of Australia v Sedgman [2019] VCAT 1526
Panegyres v Medical Board of Australia [2020] WASCA 58
Psychology Board of Australia v Rigley [2018] VCAT 1400
Singh v Medical Board of Australia [2019] WASCA 51

REASONS FOR DECISION OF THE TRIBUNAL:

Background

The applicant is established under s 31 of the Health Practitioner Regulation National Law (WA)Act2010 (WA) (Act). The Health Practitioner Regulation National Law (National Law) is the Schedule to the Act.
The respondent (Dr Forgione) was at all material times registered as a medical practitioner under the National Law and held general and specialist (General Practice and Emergency Medicine) registration.[1] Dr Forgione also held specialist registration as a medical practitioner in medical administration from in or about 1981 until 30 September 2018.[2]
[1] Annexure A, para 2.
[2] Annexure A, para 3.
In 2019 the applicant commenced an investigation into alleged sexual misconduct by Dr Forgione with a patient.
On 12 December 2019, Dr Forgione notified the applicant that he had decided to retire from medical practice and would cease work on 20 December 2019.
On 30 November 2021, the applicant filed an application with the Tribunal, alleging that there was proper cause for disciplinary action against Dr Forgione under s 196 of the National Law and, in particular, that Dr Forgione had behaved in a way that constituted professional misconduct within the meaning of s 5 of the National Law.

The Minute of Proposed Orders

The parties provided the Tribunal with a Minute of Proposed Orders dated 8 April 2022 (Minute). Annexure A to the Minute sets out an Agreed Statement of Facts and Proposed Findings and Determinations. Annexure B to the Minute is the Submissions on Mitigation which are, in effect, facts which are not disputed. Annexures A and B are attached to these reasons.
In the Minute, the parties agreed that a finding of professional misconduct should be made against Dr Forgione on the basis of the conduct outlined in Annexure A of the Minute. The professional misconduct which is agreed between the parties may be summarised as follows:
a)Dr Forgione was the general practitioner for the patient (the Patient);
b)from in or about 2011 to in or about September 2012, Dr Forgione engaged in inappropriate conduct and contact with the Patient during the course of consultations with the Patient;
c)in the period between 27 September 2012 until 24 February 2018, Dr Forgione engaged in a sexual relationship with the Patient;
d)in the course of the sexual relationship, the respondent engaged in other inappropriate conduct with the Patient;
e)in the period from 8 March 2013 to 20 December 2019, Dr Forgione exchanged numerous inappropriate text messages and emails of a sexual and/or inappropriate nature with the Patient; and
f)during the entire course of the relationship between Dr Forgione and the Patient, Dr Forgione continued to treat the Patient in his capacity as general practitioner.
We accept the facts set out in Annexure A as these facts have been agreed between the parties and in the absence of any evidence to the contrary.
We accept the facts set out in Annexure B as true in the absence of any evidence to the contrary and because the facts were not disputed by the applicant.
In determining the appropriate penalty to impose upon Dr Forgione, the Tribunal is not able to depart from the facts as agreed between the parties as to the conduct to which the penalty relates unless the Tribunal gives notice to the parties.[3]

The finding of professional misconduct

[3] Lal v Medical Board of Australia [2018] WASCA 109 at [43] - [69]; Medical Board of Australia and McCarthy [2020] WASAT 12 (S) at [56].

The term 'professional misconduct' in the context of a registered health practitioner is defined in s 5 of the National Law as conduct which includes:
(a)unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
The term 'unprofessional conduct' is defined in s 5 of the National Law and essentially means 'professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers'.
The definition of the term 'professional misconduct' is not exhaustive and, under the National Law, includes professional misconduct which does not fall within any of the paragraphs in the definition of that term.[4]
[4] Medical Board of Australia and McCarthy [2020] WASAT 12 (McCarthy) at [147].
The parties agreed that at all material times, Dr Forgione, as a medical practitioner, was required to comply, from their commencement, with either the applicant's Code of Conduct for Doctors in Australia (December 2006) (2006 Code of Conduct) or the Code of Conduct for Doctors in Australia (March 2014) (2014 Code of Conduct) and 'Sexual Boundaries: Guidelines for Doctors' (28 October 2011) (2011 Guidelines), published under s 39 of the National Law.[5]
[5] The 2006 Code of Conduct was issued in 2006 and was in effect until 16 March 2014. The 2014 Code of Conduct was issued on 17 March 2014 and was in effect until 30 September 2020. The 2011 Guidelines took effect on 28 October 2011 and were in effect until 11 December 2018 when they were replaced by the 2018 Guidelines.
Dr Forgione admitted that his conduct was in breach of the 2006 Code of Conduct, the 2014 Code of Conduct and the 2011 Guidelines as alleged. Dr Forgione also admitted that the allegations, globally, constituted professional misconduct.
In McCarthy at [157] the Tribunal considered, having regard to s 41 of the National Law, that if it made a finding that there had been a breach by the medical practitioner of a provision of the 2014 Code of Conduct or the 2011 Guidelines or both, then it was open to the Tribunal to find that this constitutes either unprofessional conduct or professional misconduct on the part of the practitioner.
On the basis of the agreed facts contained in Annexure A which are summarised at [7], we are satisfied that there is proper cause for disciplinary action against Dr Forgione. We also find that Dr Forgione's conduct was in breach of the 2006 Code of Conduct, the 2014 Code of Conduct and the 2011 Guidelines. Having regard to the nature and duration of the breach of professional boundaries, we find that his conduct was substantially below the standard reasonably expected of a medical practitioner with general and specialist registration of an equivalent level of experience to Dr Forgione.
The parties say we can find Dr Forgione has behaved in a way that constitutes professional misconduct within s 196(1)(b)(iii) of the National Law as defined in s 5 of the National Law and we so find.

Powers of the Tribunal when a practitioner is found to have committed professional misconduct

Section 196 of the National Law provides for the powers of the Tribunal when it finds that a practitioner has behaved in a way that constitutes professional misconduct. The section relevantly provides:
…
(2)If a responsible tribunal makes a decision referred to in subsection (1)(b), the tribunal may decide to do one or more of the following -
(a)caution or reprimand the practitioner;
(b)impose a condition on the practitioner's registration, including, for example -
(i)a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or
(ii)a condition requiring the practitioner to undertake a specified period of supervised practice; or
(iii)a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or
(iv)a condition requiring the practitioner to manage the practitioner's practice in a specified way; or
(v)a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or
(vi)a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;
(c)require the practitioner to pay a fine of not more than $30,000 to the National Board that registers the practitioner;
(d)suspend the practitioner's registration for a specified period;
(e)cancel the practitioner's registration.
(3)If the responsible tribunal decides to impose a condition on the practitioner's registration, the tribunal must also decide a review period for the condition.
(4)If the tribunal decides to cancel a person's registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to -
(a)disqualify the person from applying for registration as a registered health practitioner for a specified period; or
(b)prohibit the person, either permanently or for a stated period from -
(i)providing any health service or a specified health service; or
(ii)using any title or a specified title.

General legal principles applying to the imposition of a penalty in disciplinary proceedings

The general legal principles which apply to the imposition of a penalty in vocational disciplinary matters are well settled.[6]
[6] The approach in Medical Board of Australia and Singh [2017] WASAT 33 (S) (Singh (S)) was approved in Singh v Medical Board of Australia [2019] WASCA 51; see also Chiropractic Board of Australia and Ebtash [2020] WASAT 86 (Ebtash) at [9] [17].
The purpose of disciplinary proceedings is to protect the public and not to punish the practitioner. As was recently restated in Medical Board of Australia and Pepulani [2021] WASAT 128 (Pepulani) at [10]:
The protection of the public has various dimensions. They include:
1.the need to protect the public by preventing the practitioner from practising;
2.the need to bring home to the practitioner the seriousness of their conduct;
3.the need to deter the practitioner from future breaches;
4.reassuring the public that a certain type of behaviour is not acceptable professional conduct; and
5.signalling to other members of the profession that a certain type of behaviour is not acceptable professional conduct.
When exercising functions under the National Law, s 4 requires the Tribunal to have regard to the objectives and guiding principles of the registration and accreditation scheme set out in s 3 of the National Law which include the following:
… to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered[.][7]
[7] National Law, s 3(2)(a).
In Singh (S) at [30], the Tribunal set out a non-exhaustive list of matters which may require consideration by the Tribunal when exercising its discretion to impose an appropriate sanction against a practitioner under s 196 of the National Law. The matters are summarised below:
a)any need to protect the public against further misconduct by the practitioner;
b)the need to protect the public through general deterrence of other practitioners from similar conduct;
c)the need to protect the public and maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions and thereby articulating the high standards expected of the profession such that, even where there may be no need to deter a practitioner from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval;
d)in the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner;
e)whether the practitioner has breached any Act, regulations, guidelines or code of conduct issued by the relevant professional body and whether the practitioner has done so knowingly;
f)whether the practitioner's conduct demonstrated incompetence, and if so, to what level;
g)whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future;
h)the practitioner's disciplinary history;
i)whether or not the practitioner understands the error of his or her ways, including an assessment of any remorse and insight (or a lack thereof) shown by the practitioner, since a practitioner who fails to understand the significance and consequences of misconduct is a risk to the community;
j)the desirability of making available to the public any special skills possessed by the practitioner;
k)the practitioner's personal circumstances at the time of the conduct and at the time of imposing the sanction. However, the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public; and
l)the Tribunal may consider any other matters relevant to the practitioner's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness.
The considerations set out in [23] above provide a useful framework or reference point for considering whether the penalties proposed by the parties are appropriate, and we have adopted them in this decision.

Factor 1: The need to protect the public against further misconduct by Dr Forgione

Dr Forgione commenced a sexual relationship with the Patient which persisted over a period of five years. This was a very serious transgression of the professional boundaries that doctors are required to maintain to promote a patient's care and protect both patients and doctors. The transgression is aggravated by the fact that Dr Forgione continued to treat the Patient during the course of their relationship.
The rules concerning professional boundaries are principally designed to protect patients. However, we are of the view that there is little need for personal deterrence in Dr Forgione's case. We find that Dr Forgione is unlikely to repeat conduct of this kind because he does not intend to return to practise and, for the reasons set out in [40] - [44], we accept that Dr Forgione has demonstrated remorse.

Factor 2: The need to protect the public through general deterrence of other practitioners

We are of the view that the public must be protected from medical practitioners who transgress professional boundaries by engaging in a sexual relationship with a patient. It is not appropriate for a medical practitioner to take advantage of the power imbalance that exists in the doctor-patient relationship and exploit a patient sexually.
The penalty in this case must be sufficient to deter other practitioners from engaging in similar misconduct. This factor is a compelling reason for a strong penalty in this case.

Factor 3: The need to protect the public by reinforcing high professional standards and denouncing transgressions

Sexual misconduct of the kind engaged in by Dr Forgione has the potential to seriously undermine the public's confidence in the profession and the ability of its members to maintain appropriate professional boundaries with patients. Accordingly, we take the view that the penalty imposed must be of sufficient severity to reinforce the importance of maintaining professional boundaries between a doctor and patient so as to maintain public confidence in the medical profession. Further, the penalty must involve public condemnation of conduct of this nature by the Tribunal so as to reassure the public.

Factor 4: Dishonesty

Dr Forgione did not mislead the applicant at any time.

Factor 5: Breach of an Act, regulations, guidelines or code of conduct

Dr Forgione admitted, and we have found, that his conduct was in breach of the 2006 Code of Conduct, the 2014 Code of Conduct and the 2011 Guidelines as alleged.[8]
[8] Annexure A, paras 2 and 15.
The 2006 Code of Conduct and the 2014 Code of Conduct make it clear that good medical practice involves '[m]aintaining professional boundaries' and '[n]ever using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care …'.
Clause 2 of the 2011 Guidelines states that '[b]reaching sexual boundaries is always unethical and usually harmful'.
The 2011 Guidelines state, inter alia, that:
a sexual relationship describes the totality of the relationship between two people, when the relationship has some sexual element, including any sexual activity between a doctor and their patient. This is the case whether or not the sexual relationship was initiated by the patient.
The agreed facts in Annexure A attempt to distinguish between the sexual relationship between Dr Forgione and the Patient and other conduct engaged in by Dr Forgione with the Patient which was described as 'inappropriate conduct'. The former was particularised in para 11 of Annexure A as sexual intercourse and the exchange of intimate text messages with the Patient. The latter was particularised in para 12 and para 13 of Annexure A as multiple visits to two shopping centres, the provision of money to the Patient, the payment of goods for the Patient (groceries, clothes, flights, concert tickets and gifts), and the exchange with the Patient of numerous inappropriate text messages and emails of a sexual and/or inappropriate nature.

Consistent with the description of a sexual relationship in the 2011 Guidelines, we consider that the facts particularised in para 12 and para 13 of Annexure A were part of the sexual relationship between Dr Forgione and the Patient. However, we acknowledge that each of the individual activities alone would constitute a breach of boundaries between a doctor and a patient but might not constitute professional misconduct.

Factor 6: Incompetence

There was no evidence that the medical care provided to the Patient was itself below professional standards but for the sexual relationship and related conduct. This is a matter to which we have had regard in mitigation.

Factor 7: Was the incident isolated?

Although the sexual relationship that Dr Forgione had with the Patient took place over many years, there was no evidence that Dr Forgione had engaged in sexual relationships with other patients. Accordingly, we find that the incident was not isolated in the sense that the conduct occurred over a lengthy period but was isolated in the sense of there being only one patient involved.

Factor 8: Dr Forgione's disciplinary history

Dr Forgione had no disciplinary history with the applicant and had not previously been the subject of unprofessional conduct or professional misconduct allegations.

Factor 9: Whether or not Dr Forgione understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by the practitioner

There are a number of facts which we find show evidence of contrition on the part of Dr Forgione.
First, Dr Forgione admitted, at an early stage, that he engaged in the conduct.
Second, Dr Forgione has acknowledged the seriousness of the allegations.
Third, Dr Forgione surrendered his registration following the commencement of the investigation and prior to the commencement of disciplinary action in the Tribunal.
The applicant has submitted, and we accept, that less weight should be attributed to the surrender of Dr Forgione's registration than might otherwise be the case. The applicant had, before the surrender, proposed immediate action in order to restrict his registration. Further, Dr Forgione's age and ill-health contributed to the decision.

Factor 10: Are there any special skills possessed of Dr Forgione?

It has not been submitted that there is evidence that Dr Forgione possesses special skills not otherwise available to the public in Western Australia. Further, and in any event, Dr Forgione has indicated that he has retired and does not intend to return to practise.

Factor 11: Dr Forgione's personal circumstances

The following personal circumstances were submitted as being relevant to mitigation:
a)at the time of the relationship with the Patient, he was suffering significant distress due to his mother falling ill and other family issues. Dr Forgione considers the significant personal stressors he was experiencing at the time contributed to his error of judgment in initiating the sexual relationship;
b)he is currently 72 years of age, undergoing treatment for bowel cancer and does not intend to return to practise medicine; and
c)he had had a distinguished career as a medical practitioner.
We have had regard to these personal circumstances in mitigation. However, we note that the personal circumstances of Dr Forgione cannot override the obligation of the Tribunal to protect the public.

Factor 12:Are there any other matters related to Dr Forgione's fitness to practise?

We do not consider that there are any other matters related to Dr Forgione's fitness to practise.

The imposition of a penalty in respect of the professional misconduct by Dr Forgione

In addition to the twelve considerations set out in [25] - [48] above, any sanction which we impose under s 196(2) of the National Law must be imposed by reference to the nature and seriousness of the practitioner's conduct.[9]
[9] Panegyres v Medical Board of Australia [2020] WASCA 58 at [141], [317] and [412].
The professional misconduct engaged in by Dr Forgione was sexual misconduct of a most serious nature which strikes at the heart of the doctor-patient relationship.
In clause 4 of the 2011 Guidelines, three reasons why breaching sexual boundaries is always unethical and usually harmful are identified, namely: power imbalance, trust and loss of objectivity.
The 2011 Guidelines have now been replaced by Sexual Boundaries in the Doctor-Patient Relationship issued by the applicant on 12 December 2018 (2018 Guidelines). In clause 2 of the 2018 Guidelines, the reasons why breaching sexual boundaries is unethical and harmful have been expanded and described as follows:
•Power imbalance: The doctor-patient relationship is inherently unequal. The patient is often vulnerable and in some clinical situations may depend emotionally on the doctor. To receive healthcare, patients are required to reveal information that they would not reveal to anyone else and may need to allow a doctor to conduct a physical examination. A breach of sexual boundaries in the doctor-patient relationship exploits this power imbalance.
•Trust: Patients place trust in their doctor. They have a right to expect that examinations and treatment will only be undertaken in their best interests and never for an ulterior, sexual motive.
•Safety: Patients subjected to sexual behaviour from their doctor may suffer emotional and physical harm.
•Quality: A doctor who sexualises patients is likely to lose the independence and objectivity needed to provide them with good quality healthcare.
•Public confidence: Members of the community should never be deterred from seeking medical care, permitting intimate examinations or sharing deeply personal information, because they fear potential abuse.
We agree that a breach of sexual boundaries is unethical and harmful for the reasons identified in clause 2 of the 2018 Guidelines.
We are of the view that the conduct engaged in by Dr Forgione in relation to the Patient was at the more serious end of the spectrum of sexual misconduct having regard to the following matters:
a)Dr Forgione was an experienced medical practitioner, having been registered for 45 years (between January 1974 and December 2019);
b)the Patient had been a patient of the medical practice for approximately 20 years before the sexual relationship commenced, and had attended over 300 consultations at the practice during that period, including at least 116 consultations with Dr Forgione;
c)the relationship commenced at a time when the Patient was vulnerable having regard to her anxiety, depression and the breakdown of her marriage all of which he was aware of as a result of the lengthy doctor-patient relationship between himself and the Patient;
d)the sexual relationship was protracted in length spanning a period of five years; and
e)Dr Forgione continued the doctor-patient relationship during the currency of the sexual relationship and failed to transfer the Patient's care to another practitioner.
The applicant submitted that in determining a penalty, we should also have regard to the fact that the relationship caused mental harm to the Patient. While there may have been evidence available to the parties going to the issue of mental harm, the impact of the relationship upon the Patient's mental health is not an agreed fact. As a result, we have not taken this matter into account.
There are no tariffs in respect of matters involving sexual misconduct by a health practitioner in respect of a patient. This is because sexual misconduct, as outlined in the 2011 Guidelines, 'covers a range of inappropriate professional behaviours including sexualised behaviour, sexual exploitation or abuse, entering into a sexual relationship, and sexual assault'.[10]
[10] Clause 3 of the 2011 Guidelines.
In Medical Board of Australia v Bradshaw (Review and Regulation) [2020] VCAT 584 (Bradshaw) at [110], the Victorian Civil and Administrative Tribunal (VCAT) noted some features of cases involving a personal and sexual relationship between health practitioners and patients or former patients:
In most of the cases that were cited the relevant misconduct was entering a personal and sexual relationship with a patient or former patient. In a few cases there was additional misconduct such an inadequate record-keeping or inappropriate treatment. The nature and seriousness of the boundary transgressions varied widely, especially having regard to the vulnerability of the patient and the practitioner's knowledge of the vulnerability at the time of breaching the professional boundary. In some cases, there were indications that the relationship was consensual. In other cases, the practitioner's conduct was unquestionably exploitative. Some relationships were short-lived. Others extended over several years. In one case, the practitioner had a relationship with three patients sequentially over a number of years. In most cases the disciplinary tribunal had only one relationship to consider. Some practitioners displayed insight and remorse from an early stage. Other practitioners were not cooperative with the relevant board. Some even deliberately sought to conceal their behaviour, denied the allegations or gave evidence that the tribunal found unsatisfactory. Some practitioners did not participate at all in the tribunal proceedings. The personal circumstances of the practitioner - such as age, mental health status or history of substance abuse; or time passing between the misconduct and the tribunal's determination; or the disciplinary history - were obviously unique to the practitioner.
We accept that it is desirable that there be consistency in the penalties imposed for misconduct of a particular kind in disciplinary proceedings under the National Law within Australia. This is because the National Law creates a national scheme for the regulation of health practitioners.[11] To that end, we consider that an examination of the penalties imposed in other comparable cases is of assistance in attempting to achieve broad consistency in the penalties imposed across Australia by Tribunals which apply the National Law.[12]
[11] Medical Board of Australia and Costley [2013] WASAT 2; (2013) 83 SR (WA) (Costley) at [45].
[12] Ebtash at [99].
However, each case is different and the penalty to be imposed must be determined having regard to the facts of the case before the Tribunal, the disciplinary measures which are necessary to protect the public and, given that the National Law is of relatively recent origin, whether or not the decisions were made under the National Law.[13]
[13] Pepulani at [72]; Nursing and Midwifery Board of Australia and Jackson [2013] WASAT 140 at [43][44]; Costley at [45]; Bradshaw at [109] and [118].
The Minute proposed the making of three orders by way of penalty against Dr Forgione. First, that Dr Forgione be reprimanded. Second, that Dr Forgione be disqualified from applying for registration under the National Law for a period of six years from the date of the order. Third, that Dr Forgione pay a contribution towards the applicant's costs of bringing the Tribunal proceeding, to be assessed if not agreed, pursuant to s 195 of the National Law.
We agree that there are important public policy benefits in receiving agreed penalty submissions, nevertheless the Tribunal must be satisfied that the penalty which the parties propose is an appropriate penalty in all of the circumstances.[14]

Global penalty

[14] Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate & Ors [2015] HCA 46; 326 ALR 476 at [58].

In some vocational disciplinary proceedings, the imposition of a global penalty may be appropriate, rather than the imposition of a separate sanction for each act giving rise to professional misconduct. This is likely to arise where the acts giving rise to the professional misconduct are so inextricably woven as to make it difficult to meet a clear standard of prescription.[15]
[15] Singh at [29]; Medical Board of Australia and Lal [2019] WASAT 13 at [40]; Medical Board of Australia and Nuttall [2017] WASAT 58 (S) at [19].
The applicant accepts that the Tribunal may impose a global sanction as Dr Forgione's conduct, which is the subject of the agreed facts, arises from a single course of behaviour relating to the transgression of sexual boundaries and the conduct is necessarily interwoven.
We agree that a global penalty is appropriate in the circumstances.

A reprimand

A caution or reprimand involves 'a public censure for conduct' or 'a formal and stern warning or rebuke to the practitioner involved which signals the need for them to refrain from such conduct in the future'.[16]
[16] Ebtash (S) at [126].
A reprimand is a means of informing 'the public, patients and other health practitioners that the standards expected of a practitioner have not been met and that the practitioner has been censured'.[17]
[17] Psychology Board of Australia v Rigley [2018] VCAT 1400 at [52]; Bradshaw at [145]; Nurses and Midwifery Board of Australia v Sedgman [2019] VCAT 1526 (Sedgman) at [46].
The issue of a reprimand by the Tribunal following a finding of professional misconduct is a serious matter notwithstanding that the penalty will have no practical impact on the practitioner's conduct of their profession and does not have the financial consequences of other penalties such as a fine or a disqualification from practice.[18]
[18] Pepulani at [90].
In Chiropractic Board of Australia and Ebtash [2020] WASAT 86 (S) (Ebtash (S)) at [128], the Tribunal expressed the view that the imposition of a reprimand in a case where a far more serious penalty is also to be imposed appeared incongruous 'because the significance of the reprimand is subsumed in the impact of the other more substantial penalties imposed'.
Notwithstanding that we also intend to impose a period of disqualification upon Dr Forgione, in this case we consider that a reprimand is an appropriate sanction for the protection of the public. Dr Forgione's professional misconduct involved a very serious departure from proper professional standards. A reprimand by the Tribunal will serve to notify and remind members of the public, patients and practitioners alike that personal relationships between a practitioner and patient are not acceptable.
Disqualification
It is an agreed fact that Dr Forgione surrendered his registration in 2019 and consequently we find that he does not currently hold registration under the National Law. Accordingly, under s 196(4)(a) of the National Law, it is open to the Tribunal to disqualify Dr Forgione from applying for registration as a registered health practitioner for a specified period.
In Ebtash (S) at [14] it was stated that 'the power to order a period of disqualification is to be exercised for the protective purposes that apply to the disciplinary proceeding generally' and that 'all of the various aspects of the protection of the public will be relevant to whether the Tribunal orders a period of disqualification, and, if so, what that period should be'.
The aspects of the protection of the public include: the immediate need to protect the public from the practitioner's conduct; the need to bring home to the practitioner the seriousness of his or her conduct; the need to deter the practitioner from future breaches; and the need to emphasise to other members of the profession, or reassure the public, that a certain type of conduct is not acceptable professional conduct.[19]
[19] Ebtash (S) at [11].
We have reviewed the cases the applicant drew to our attention, and some other comparable cases.
In Medical Board of Western Australia and Smith [2006] WASAT 213 (Smith) the practitioner formed a social relationship with a patient which turned into a sexual relationship which lasted for approximately three months. Subsequently, the practitioner and the patient lived together in the same house for a period of about five years and were physically affectionate with one another. They also purchased a property together. The Tribunal found the practitioner guilty of infamous conduct in a professional respect and suspended the practitioner's registration for a period of 12 months under the Medical Act 1894 (WA).
In McCarthy the practitioner engaged in a sexual relationship with a patient for a period of approximately 18 months. During that time the practitioner prescribed Ritalin for the patient in the absence of any clinical indication which resulted in the patient becoming disinhibited, suffering from insomnia and experiencing elevated libido. Further, the practitioner was also found to have: failed to make and keep adequate clinical notes concerning most of his consultations with the patient; provided false information concerning the treatment of the patient in a referral letter to another medical practitioner; and contacted the patient to try and persuade her not to cooperate with the applicant or the Australian Health Practitioner Regulation Agency about his conduct. The Tribunal found the practitioner to have behaved in a way that constituted professional misconduct. Subsequently, the Tribunal cancelled the practitioner's registration and disqualified him from applying for registration for a period of five years.[20]
[20] Medical Board of Australia and McCarthy [2020] WASAT 12 (S) at [72]-[76].
In Bradshaw, the practitioner had a personal and sexual relationship with a patient for a period of five years. During the relationship, the practitioner prescribed Schedule 8 drugs and other medications to the patient in circumstances where it was, or ought to have been apparent to the practitioner that she had, or was at risk of developing, an opioid dependency. The patient subsequently committed suicide. Further, the relationship with the patient commenced after the practitioner was made the subject of an investigation into similar misconduct with another patient. VCAT found the practitioner to have behaved in a way that constituted professional misconduct. VCAT reprimanded the practitioner, cancelled the practitioner's registration and effectively disqualified him from applying for registration for a period of eight years.
In Sedgman, the practitioner had a personal and sexual relationship with a former patient for a period of six years. The patient was particularly vulnerable due to acute poor mental health which had resulted in numerous suicide attempts. VCAT found the practitioner's conduct to constitute professional misconduct. VCAT reprimanded the practitioner, cancelled the practitioner's registration and disqualified him from applying for registration for a period of five years.
In Costley, the practitioner had a personal and sexual relationship with three patients. There was a significant age disparity between the practitioner and two of those patients. The practitioner also wrote a script for a patient without examining her when he knew it was for someone other than her and provided her with a false medical certificate when he knew that she was not unfit for work. The conduct the subject of the proceeding took place over a period of 12 years. The Tribunal cancelled the practitioner's registration.
In Health Care Complaints Commission v Mooney [2021] NSWCATOD 206 (Mooney) the practitioner formed a personal relationship with a patient which lasted approximately two years. They exchanged thousands of text messages and hundreds of telephone calls, had dinner together on two occasions and went to a hotel together. The practitioner also prescribed medication to the patient which was not clinically justified and was probably contra-indicated. There was a significant age gap between the practitioner and the patient. The New South Wales Civil and Administrative Tribunal (NSWCAT) found the practitioner guilty of unsatisfactory professional conduct under the National Law. The practitioner was also found guilty of other counts of unsatisfactory professional conduct and professional misconduct in respect of other matters. Subsequently, NSWCAT cancelled the practitioner's registration and disqualified him for applying for a review of the cancellation for a period of 12 months.[21]
[21] Health Care Complaints Commission v Mooney [2021] NSWCATOD 44.

We consider that Dr Forgione's professional misconduct is more serious than the conduct in Mooney because his relationship with the Patient was a sexual relationship and because his relationship with the Patient lasted significantly longer.
We consider that Dr Forgione's professional misconduct is more serious than the conduct in Smith because his sexual relationship with the Patient lasted significantly longer. We also note that the penalty imposed by the Tribunal was not imposed under the National Law.
We consider that Dr Forgione's professional misconduct is less serious than the conduct in Sedgman because his sexual relationship with the Patient did not last as long and the Patient, although vulnerable, was not as vulnerable as the patient in Sedgman.
We consider that Dr Forgione's professional misconduct is less serious than the conduct in McCarthy and Costley because Dr Forgione did not, in addition to his sexual relationship with the Patient, engage in the inherently dishonest and unethical conduct engaged in by Dr McCarthy or Dr Costley described above. Further, unlike Dr Costley, Dr Forgione did not engage in a sexual relationship with more than one patient and there was not a significant age gap between Dr Forgione and the Patient.
Similarly, we consider that Dr Forgione's professional misconduct is less serious than the conduct in Bradshaw notwithstanding that the sexual relationship lasted the same period of time. Dr Forgione did not expose the Patient to a very high risk of grave harm through the prescription of opioids. Further, Dr Forgione did not commence or continue the sexual relationship with the Patient when he was under investigation, or the subject of sanctions, in respect of a sexual relationship with another patient.
We agreed with the parties that disqualification from applying for registration for a period of time is an appropriate penalty for Dr Forgione notwithstanding that Dr Forgione has indicated that he does not intend to return to practise. However, we do not agree that disqualification for a period of six years is appropriate.
The serious nature of the professional misconduct in which Dr Forgione engaged warrants a substantial period of disqualification. Having taken into account the general principles relating to penalties, the considerations relevant to those principles discussed above and the penalties imposed in broadly comparable cases, we are of the view that in this case an appropriate period of disqualification from registration is four years.

Costs

The starting point for the consideration of the question of costs is s 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), namely that each party bears its own costs.
However, s 87(1) of the SAT is subject to the following:
a)any relevant provision of the enabling Act; and
b)the discretion of the Tribunal under s 87(2) of the SAT Act to make an order for the payment by a party of all or any of the costs of another party.
The relevant enabling Act in this case is the National Law. Section 195 of the National Law provides that the Tribunal 'may make any order about costs it considers appropriate for the proceedings'.
In McCarthy at [89]-[90], the Tribunal stated:
89The Tribunal's established practice in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act in vocational disciplinary proceedings is that a successful application by a vocational regulatory body, such as the Board, will usually result in an order for costs being made in favour of the vocational regulatory authority; Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) (Roberman) at [30], referred to with approval in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [35]. As the Tribunal said in Roberman, the policy basis is that vocational regulatory bodies 'perform a function which promotes the public interest, and usually with limited resources', and '[t]he financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented'.
90There is, however, no presumption that a disciplinary body will always be awarded costs if successful. Each case must be considered individually on its merits.
The Tribunal has the power to make an order as to costs under s 87(2) of the SAT Act and s 195 of the National Law.
Section 195 of the National Law provides that the Tribunal 'may make any order about costs it considers appropriate for the proceedings'.
The parties have agreed to an order that Dr Forgione pay a contribution towards the applicant's costs of the proceedings in the sum of $11,000.[22]
[22] Minute of proposed orders signed by the parties and filed with the Tribunal on 30 May 2022.
We find the fixing of the payment of a contribution towards costs at $11,000 is not unreasonable. This is for three reasons. First, the nature of the proceedings and the manner in which the proceedings were undertaken, including the work necessary to bring the matter before the Tribunal to a resolution. Second, the fact that Dr Forgione agreed to an order requiring payment of that amount. Third, given that the applicant was wholly successful in its application, the Tribunal might have made an order awarding the applicant the whole of its (reasonable) costs.
Accordingly, we will order that Dr Forgione pay a contribution towards the applicant's costs of bringing the Tribunal proceeding, fixed at $11,000, pursuant to s 195 of the National Law.

Proposed Orders

Subject to hearing from the parties, we would propose to make the following orders:
1.The respondent is reprimanded, pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA).
2.The respondent is disqualified from applying for registration under the Health Practitioner Regulation National Law (WA)Act 2010 (WA) for a period of four years from the date of this order, pursuant to s 196(4)(a) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA).
3.The respondent shall pay a contribution towards the applicant's costs of bringing the Tribunal proceeding, fixed at $11,000, pursuant to s 195 of the Health Practitioner Regulation National Law (WA) Act 2010 (WA).
The parties may wish to consider whether proposed order 3 should be amended to specify a date by which, if not otherwise agreed, the payment by the respondent of the contribution towards the applicant's costs is to be made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MA
Associate to Judge Glancy
8 AUGUST 2022

Annexure A

Agreed Statement of Facts, Proposed Findings and Determinations

The Applicant

The Applicant is established pursuant to section 31 of the National Law and regulation 4 of the Health Practitioner Regulation National Law Regulation 2018 (WA) and has the functions referred to in section 35 of the National Law, including the referral of matters concerning registered health practitioners to responsible tribunals in participating jurisdictions.

The Respondent

The Respondent first obtained registration as a medical practitioner in Australia on 8 January 1974, and at all material times, held general and specialist (General Practice and Emergency Medicine) registration as a medical practitioner pursuant to the National Law.
The Respondent also held specialist registration as a medical practitioner in medical administration, from in or about 1981 until 30 September 2018 when he failed to renew this registration.
The Respondent has surrendered his registration under the National Law, effective 20 December 2019, and does not intend to return to practise.

Preliminary

At all material times, the Respondent practised as a general practitioner at Trigg Health Care Centre (THC Centre).
Patient A (the Patient) first attended a consultation at the THC Centre with the Respondent on 6 May 1992 to seek medical care regarding various issues, including the health of her young son, her pregnancy and her mental health.
In the period from 6 May 1992 to 20 January 2020, the Patient attended over 300 consultations at the THC Centre, including at least 116 consultations with the Respondent from 6 May 1992 to 5 April 2018.
Particulars
(a) Consultations with, and treatment provided to the Patient included breast examinations, management of a chronic respiratory disease, discussing results of vaginal swabs, pathology referrals and results, prescriptions for anti-depressant medications, consultations for menopausal symptoms, urinary tract infections and referrals to psychologists for specialist mental health treatment for psychological issues including anxiety, depression, relationship issues and unhelpful thinking styles.
At all material times, the Respondent, as a medical practitioner, was required to comply with the Applicant’s Code of Conduct for Doctors in Australia (December 2006) (2006 Code of Conduct), Code of Conduct for Doctors in Australia (March 2014) (2014 Code of Conduct) and the ‘Sexual Boundaries: Guidelines for doctors’ (28 October 2011) (Guidelines), published under section 39 of the National Law.
The allegations of conduct
Inappropriate conduct and sexual relationship
In the period from in or about 2011 to in or about September 2012, the Respondent engaged in inappropriate conduct and contact with the Patient during the course of the consultations with the Patient at the THC Centre.

Particulars

(a) During a consultation on 8 August 2012 when the Patient’s daughter was present, the Respondent placed his arm around the Patient’s neck, and said “me and your Mum are quite close”.

On 27 September 2012, the Patient attended a consultation with the Respondent, during which the Respondent engaged in sexual contact with Patient.

Particulars

(a)   The Patient attended the consultation regarding symptoms of an upper respiratory tract infection.
(b)   The Patient disclosed feelings of distress and depression associated with her marriage and her home environment.
(c)   The responded suggested to the Patient that she leave her marriage.
(d)   The Respondent offered reassurance around her concerns about the emotional, financial and physical consequences of leaving her marriage.
(e)   The Patient played a CD in Italian, and asked the Respondent to translate it.
(f)   The Respondent translated the song, then leaned over and kissed the Patient.
(g)   The Respondent told the Patient to get on the floor, and they engaged in sexual intercourse on the floor and on the consultation table.

In the period from 27 September 2012 until 24 February 2018, the Respondent engaged in a sexual relationship (the Sexual Relationship) with the Patient.

Particulars

(a) The Respondent, regularly and on multiple occasions, engaged in sexual intercourse with the Patient, including in the Respondent’s consulting rooms at the THC Centre at night after the Respondent’s colleagues had left for the day.
(b) The Respondent and the Patient regularly exchanged intimate text messages.

In the course of the Sexual Relationship, the Respondent also engaged in inappropriate conduct with the Patient.

Particulars

(a)   The Respondent and the Patient regularly, and on multiple occasions attended Karrinyup Shopping Centre and Dianella Plaza.
(b)   The Respondent regularly provided the Patient with money, in amounts of between $50 and $700.
(c)   The Respondent paid for goods for the Patient, including groceries, clothes, flights, concert tickets and gifts.

In the period from 8 March 2013 to 20 December 2019, the Respondent exchanged numerous inappropriate text messages and emails of a sexual and/or inappropriate nature with the Patient.
During the entire course of the Relationship, the Respondent continued to treat the Patient at the THC Centre in his capacity as general practitioner.

Particulars

(a) Consultations with, and treatment provided to the Patient included breast examinations, management of a chronic respiratory disease, discussing results of vaginal swabs, pathology referrals and results, prescriptions for anti-depressant medications, consultations for menopausal symptoms, urinary tract infections and referrals to psychologists for specialist mental health treatment for psychological issues including anxiety, depression, relationship issues and unhelpful thinking styles.

Admissions of alleged conduct

The Respondent admits that:
15.1.he engaged in the conduct described by the allegations in the referral application lodged under s 193 of the National Law on 1 December 2021, and as set out in [9]-[14] above, and
15.2.the conduct was in breach of the 2006 and/or 2014 Codes of Conduct and Guidelines, as alleged.
Characterisation
The Respondent admits that the allegations, globally, constitute professional misconduct, as defined under s 5 of the National Law.
Determinations
The parties jointly submit that the appropriate determination in this matter is as follows:
17.1.the Respondent be reprimanded.
17.2.the Respondent is disqualified from applying for registration under the National Law for a period of 6 years.

Annexure B

Submissions on Mitigation

Mitigation

The Respondent submits, and the Applicant does not dispute, that the following factors are relevant to mitigation:
18.1.The Respondent has acknowledged the allegations throughout the Applicant’s
investigations and has not misled the Applicant at any time.
18.2.The Respondent acknowledged the seriousness of the allegations.
18.3.The Respondent surrendered his registration in response to this matter.
18.4.The Respondent has had a distinguished career as a medical practitioner, including working as the Director of Emergency Services at Princess Margaret Hospital for Children and as a Medical Administrator at Royal Perth Hospital. The Respondent has also held advisory roles with Diabetes WA Primary Care Group, Notre Dame University’s (Fremantle) Medical School, Curtin University’s (Bentley) Centre for Clinical Research and Education and the Royal Australian College of General Practitioner’s obesity and diabetes special interest groups.
18.5.The Respondent has no disciplinary history with the Applicant and has never been the subject of a finding of unprofessional conduct or professional misconduct.
18.6.The Respondent is currently 72 years old, undergoing treatment for bowel cancer and does not intend to return to practise medicine.
18.7.At the time of the Sexual Relationship, the Respondent was suffering significant distress due to his mother falling ill and other family issues. The Respondent considers the significant personal stressors he was experiencing at the time contributed to his error of judgment in initiating the Sexual Relationship.
18.8.There is no evidence that the medical care provided to the Patient was itself below professional standards, but for the Sexual Relationship and related conduct.