MEDICAL BOARD OF AUSTRALIA and LAGRANGE - [2021] WASAT 161

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 (WA)
CITATION:   MEDICAL BOARD OF AUSTRALIA and LAGRANGE [2021] WASAT 161
MEMBER:   JUDGE D R PARRY, DEPUTY PRESIDENT
DR E MARILLIER, MEMBER
MS KY LOH, MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   17 DECEMBER 2021
FILE NO/S:   VR 162 of 2019
BETWEEN:   MEDICAL BOARD OF AUSTRALIA
Applicant
AND
LUCIEN EDOUARD LAGRANGE
Respondent

Catchwords:

Vocational regulation Registered health practitioners Medical practitioners Maintenance of professional boundaries Whether practitioner engaged in sexual conduct with or sexual behaviour towards patients Whether practitioner failed to take proper history from patient Whether practitioner failed to order necessary tests Whether practitioner failed to prescribe appropriate medication Whether practitioner failed to discuss appropriate followup with patient Whether practitioner failed to make adequate clinical notes

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010 (WA)
Health Practitioner Regulation National Law, s 5, s 35(1)(i), s 39, s 41, s 156, s 156(1)(a), s 193(1)(a)(i), s 193(2)(a)(i), s 196(1), s 196(1)(b)(i), s 196(1)(b)(ii), s 196(1)(b)(iii)
Medical Act 1894 (WA)
State Administrative Tribunal Act 2004 (WA), s 60(2), s 62(3)

Result:

Findings of professional misconduct, unsatisfactory professional performance, and unprofessional conduct

Category: B

Representation:

Counsel:

Applicant	:	Ms JM McKenzie
Respondent	:	Mr TM Andrews

Solicitors:

Applicant	:	Minter Ellison
Respondent	:	Andrews Legal

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

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Chiropractic Board of Australia and Ebtash [2020] WASAT 86
Dekker v Medical Board of Australia [2014] WASCA 216

Medical Board of Australia and McCarthy [2020] WASAT 12
Pharmacy Board of Australia and Hamilton [2021] WASAT 138

Contents

Introduction

Legal framework

Provisions of the National Law

Principles to be applied

Onus and standard of proof

Codes and guidelines

Application of the National Law to conduct that occurred prior to the commencement of the National Law

Ground 1 – Engaging in sexual conduct with Patient 1

Evidence and findings in relation to conduct

Incident 1 – Early 1987

Incident 2 – April 1987

Incident 3 – June 1987

Incident 4 – July 1987

Incident 5 – August or September 1990

Explanation for Patient 1's failure to report the incidents at the time they occurred

Characterisation of conduct under the National Law

Ground 2 – Cupping Patient 2's right breast and holding Patient 2's right nipple when there was no clinical justification to do so

Evidence and findings in relation to conduct

Characterisation of conduct under the National Law

Grounds 3 8 – Boundary transgressions, failure to take a proper history, failure to order necessary tests, failure to prescribe appropriate medication, failure to discuss appropriate followup action, and failure to make adequate clinical notes, with Patient 3

Evidence and findings in relation to conduct

Ground 3 – Boundary transgressions with Patient 3

Ground 4 – Failure to take a proper history from Patient 3

Ground 5 – Failure to order necessary tests for Patient 3

Ground 6 – Failure to prescribe appropriate medication for Patient 3

Ground 7 – Failure to discuss appropriate followup action with Patient 3

Ground 8 – Failure to make adequate clinical notes

Characterisation of conduct under the National Law

Orders in relation to conduct

Programming orders in relation to the issues of penalty and costs

REASONS FOR DECISION OF THE TRIBUNAL

Introduction

The Medical Board of Australia (Board or applicant) alleges and seeks an order or orders in this proceeding that Dr Lucien Edouard Lagrange (Dr Lagrange or respondent) behaved in a way that constitutes professional misconduct (or unprofessional conduct or unsatisfactory professional performance), for the purposes of the Health Practitioner Regulation National Law (National Law),[1] in that:[2]
[1] The National Law is the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA).
[2] Grounds of application amended on 8 May 2020 and further amended on 4 February 2021 (Board's grounds of application).
1.In the 1980s and early 1990s, including on five particular occasions in early 1987, April 1987, June 1987, July 1987, and August or September 1990, Dr Lagrange engaged in sexual conduct with a patient SG (Patient 1) (ground 1);
2.On 4 February 2019, Dr Lagrange cupped a patient CL's (Patient 2) right breast in his hand and held Patient 2's right nipple between his fingers for about eight seconds when there was no clinical justification for him to do so (ground 2);
3.At or about midnight on 30 August 2019, after forming the belief that a patient GG (Patient 3) was a sex worker, Dr Lagrange asked Patient 3 if he could visit her at work as a client (ground 3);
4.On the same occasion as ground 3, Dr Lagrange failed to take a proper history from Patient 3 (ground 4);
5.On the same occasion as ground 3, Dr Lagrange failed to order necessary tests for Patient 3 (ground 5);
6.On the same occasion as ground 3, Dr Lagrange failed to prescribe appropriate medication for Patient 3 (ground 6);
7.On the same occasion as ground 3, Dr Lagrange failed to discuss appropriate followup action with Patient 3 (ground 7); and
8.On the same occasion as ground 3, Dr Lagrange did not make adequate clinical notes of Patient 3's consultation (ground 8).
At the time of the alleged conduct the subject of ground 1, Dr Lagrange was registered as a medical practitioner under the Medical Act 1894 (WA) (Medical Act), and at the time of the alleged conduct the subject of grounds 2 8, Dr Lagrange was registered as a registered health practitioner, in particular a medical practitioner, under the National Law.[3] On 26 August 2019, the Board notified Dr Lagrange that, in consequence of Patient 1's complaint (which is now the subject of ground 1), it proposed to take 'immediate action' to suspend Dr Lagrange's registration under s 156 of the National Law, because the Board 'reasonably believes that because of Dr Lagrange's conduct, he poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety; and it is otherwise in the public interest'.[4] In particular, the Board 'considered that the identified serious risk arising from Dr Lagrange's alleged conduct is to a potential class of persons who are … female patients of Dr Lagrange; and … in their homes'.[5] The Board invited Dr Lagrange to provide a written submission by 29 August 2019 or make a verbal submission on 2 September 2019 in relation to the proposed immediate action.
[3] Board's grounds of application, para 2 and Respondent's response to the grounds of application amended on 8 May 2020 and further amended on 4 February 2021 dated 24 March 2021 (respondent's response to Board's grounds of application), para 1.
[4] Applicant's book of documents dated 30 September 2020 (Board's bundle), page 131.
[5] Board's bundle, page 132.
On 27 August 2019, Dr Lagrange's solicitor made a written submission to the Australian Health Practitioner Regulation Agency (AHPRA) 'respectfully suggest[ing] that any perceived risk that our client poses to the public is mitigated, and it is not necessary for AHPRA to take any precipitous action to suspend our client's medical registration', because Dr Lagrange was then employed as a locum doctor with DialADoctor Australia, which is a medical deputising service providing urgent care for patients in after hours periods, (DialADoctor), and '[t]he relevant policy/protocol exercised by DialADoctor is that none of the registered medical practitioners it employs are permitted to consult with a patient in the absence of a thirdparty Doctor's Assistant'.[6] Dr Lagrange's solicitor attached a letter from the Client Relationship Manager of DialADoctor dated 27 August 2019 stating that, when a client contacts the service for a consultation, they are told, among other things, that 'there will be a third person, Doctor's Assistant (DA)[,] present during the consultation' and that the functions of a Doctor's Assistant include to '[a]ct as a chaperone during the consultation and is always present' and that this is done 'to protect both the doctor and patient'.[7] Dr Lagrange's solicitor also said in the submission letter dated 27 August 2019 to AHPRA that '[w]e are further instructed to advise that our client in any event intends to retire at the expiry of his current registration period, being 30 September 2019, and does not intend to seek renewal of his registration thereafter'.[8]
[6] Board's bundle, page 138 (original emphasis).
[7] Board's bundle, page 139.
[8] Board's bundle, page 138.
On 2 September 2019, the Board decided to take immediate action, under s 156(1)(a) of the National Law, by suspending Dr Lagrange's registration as a medical practitioner. Dr Lagrange's registration as a medical practitioner remains suspended in accordance with the Board's decision to take immediate action.
On 27 September 2019, Dr Lagrange's solicitor emailed AHPRA conveying Dr Lagrange's instructions that he 'does not possess any clinical notes, letters, summaries or any other documents or things in relation to [Patient 3] or [RU, Patient 3's partner]' and advising 'that my client has now retired' and that '[h]e is no longer registered as a medical practitioner, nor does he intend to seek registration in the future'.[9] Similarly, on 27 March 2020, when Dr Lagrange's solicitor advised AHPRA that his client 'does not wish to provide a submission' in relation to the conduct investigations concerning notifications from Patient 2 (which is now the subject of ground 2) and Patient 3 (which is now the subject of grounds 3 8), Dr Lagrange's solicitor said '[o]ur client's position is that … he is retired and has no intention of returning to practice [sic] medicine'.[10]
[9] Board's bundle, page 232.
[10] Applicant's supplementary book of documents dated 11 March 2021 (Board's supplementary bundle), page 15 (Patient 2) and Board's bundle, page 273 (Patient 3).
On 21 November 2019, the Board commenced this proceeding under s 35(1)(i) and s 193(1)(a)(i) of the National Law, initially in relation only to the practitioner's alleged conduct in respect of Patient 1. Subsequently, the Board amended its grounds of application, on 8 May 2020, in relation to Dr Lagrange's alleged conduct in respect of Patient 3, and on 4 February 2021, in relation to Dr Lagrange's alleged conduct in respect of Patient 2.
On 30 September 2020, the Board filed its bundle of documents and, on 30 September 2020 and 2 November 2020, the Board filed its witness statements in relation to grounds 1 and 3 8. On 10 November 2020, President Justice Pritchard ordered that the application is to be listed for hearing on a date to be fixed. On 13 November 2020, Dr Lagrange's solicitor informed the President's associate that 'the respondent instructs that he does not wish to attend at the hearing for the purpose of crossexamining witnesses or adducing evidence', although Dr Lagrange 'does … wish to be heard by way of written submissions prior to the Tribunal making its decision'.[11] On 27 November 2020, the President listed the matter for final hearing on 9 April 2021 for one day. On 3, 4 and 8 March 2021, the Board filed its witness statements in relation to ground 2 and, on 11 March 2021, the Board filed its supplementary bundle of documents and its submissions in relation to conduct.[12]
[11] Board's supplementary bundle, page 164.
[12] Applicant's submissions filed pursuant to order 6 made by his Honour Judge Parry on 27 January 2021 dated 11 March 2021 (Board's submissions).
In light of Dr Lagrange's position that he did not wish to attend the hearing for the purpose of crossexamining the Board's witnesses or adducing evidence himself, but wished to file written submissions in relation to conduct, and by consent of the parties, on 31 March 2021, Deputy President Judge Parry made the following orders:
[1]The final hearing date of 9 April 2021 is vacated.
[2]By 30 April 2021 the respondent is to file and serve his submissions in relation to conduct.
[3]By 29 May 2021 the applicant may file and if so must serve any submissions in reply.
[4]The issue of conduct is to be determined by the Tribunal entirely on the documents pursuant to s 60(2) of the [State Administrative Tribunal Act 2004 (WA) (SAT Act)] not before the determination of the application for a nonpublication order.
On 11 May 2021, Dr Lagrange's solicitor informed the Board's solicitor that '[o]ur client instructs that he does not wish to file responsive submissions [that is, any submissions in relation to conduct]'.[13]
[13] Applicant's second supplementary book of documents dated 14 June 2021 (Board's second supplementary bundle), page 1.
The determination of the issue of conduct was delayed because Dr Lagrange made an application for a nonpublication order in relation to his identity under s 62(3) of the SAT Act. The application for a nonpublication order was listed for hearing before Judge Parry on 23 August 2021. However, on 20 August 2021, Dr Lagrange withdrew that application.
Section 60(2) of the SAT Act states as follows:
If the Tribunal thinks it appropriate, it may conduct all or part of a proceeding entirely on the basis of documents without the parties or their representatives or any witnesses attending or participating in a hearing.
The documents on the basis of which we are determining the issue of conduct, under s 60(2) of the SAT Act, are as follows:
•Board's application to the Tribunal dated 21 November 2019;
•Board's grounds of application;
•Respondent's response to Board's grounds of application;
•Witness statement of [Patient 1] dated 5 November 2019 (Patient's 1 witness statement);
•Police statement of [Patient 1] dated 29 December 2017 (Patient 1's police statement)[14] (the accuracy of the content of which is affirmed in para 1 of Patient 1's witness statement);
[14] Board's bundle, pages 93 113.
•Witness statement of [PG] [Patient 1's husband] dated 15 November 2019 (PG's witness statement);
•Police statement of [PG] dated 29 December 2017 (PG's police statement)[15] (the accuracy of the content of which is affirmed in para 1 of PG's witness statement);
[15] Board's bundle, pages 82 89.
•Witness statement of [MV] (MV's witness statement);[16]
[16] MV's witness statement is her police statement dated 4 January 2018.
•Witness statement of [BD] dated 2 November 2020;[17]
[17] BD's witness statement consists of BD's letter to AHPRA dated 7 October 2018 and her police statement dated 11 January 2018.
•Witness statement of [CM] dated 8 November 2019;
•Witness statement of [Patient 2] dated 16 November 2020 (Patient 2's witness statement);
•Witness statement of Dr [HL] dated 28 April 2020;
•Witness statement of Dr [HML] dated 28 April 2020 (Dr HML's witness statement);
•Witness statement of Dr [JW] dated 7 May 2020 (Dr JW's witness statement);
•Witness statement of Dr Richard Mackinnon dated 27 October 2010 [sic 2020] (in relation to ground 2) (Dr Mackinnon's first witness statement);
•Witness statement of [Patient 3] dated 6 December 2019 (Patient 3's witness statement);
•Witness statement of [RU] dated 6 December 2019 (RU's witness statement);
•Witness statement of [LS] dated 25 September 2019 (LS's witness statement);
•Witness statement of [SR] dated 7 October 2019 (SR's witness statement);
•Witness statement of Dr Mackinnon dated 2 November 2020 (in relation to grounds 3 8) (Dr Mackinnon's second witness statement);
•Board's bundle;
•Board's supplementary bundle; and
•Board's second supplementary bundle.
We note that the Board's bundle, supplementary bundle and second supplementary bundle contain a large number of documents that are either irrelevant or immaterial to the issue of conduct in this case, such as documents concerning other disciplinary and performance matters in relation to Dr Lagrange, and matters concerning his health or other personal circumstances. Much of this material is relied on by the Board as propensity or similar fact evidence.[18] However, the evidence of the witnesses in relation to the conduct the subject of the grounds in this case, which is not challenged or contradicted, and the inferences which we draw from the evidence of the witnesses and other documentary evidence, discussed below, are so clear, cogent and compelling, that there is no need to review and rely on propensity evidence referred to by the Board in its submissions.[19] We will refer to the evidence of witnesses and the documentary evidence on the basis of which we make findings in relation to conduct below.
[18] See Chiropractic Board of Australia and Ebtash [2020] WASAT 86 [973] (Justice Pritchard P, Ms P Le Miere M and Mr S Carlin SSessM).
[19] Board's submissions, paras 24 79.
We will now refer to the legal framework in relation to the issue of conduct. We will then address each of the eight grounds of alleged professional misconduct in turn, making findings of fact in relation to conduct and determining the proper characterisation of the conduct under the National Law. For the reasons given below, we have determined that Dr Lagrange:
•has behaved in a way that constitutes professional misconduct, for the purposes of the National Law, in relation to each of grounds 1, 2 and 3;
•has behaved in a way that constitutes unsatisfactory professional performance, for the purposes of the National Law, in relation to each of grounds 4, 5, 6 and 7; and
•has behaved in a way that constitutes unprofessional conduct, for the purposes of the National Law, in relation to ground 8.

Legal framework

Provisions of the National Law

Section35(1)(i) of the National Law provides that the functions of a National Board established for a health profession, such as the Board, which has been established for the profession of medicine, include:
[T]o refer matters about health practitioners who are or were registered under this Law or a corresponding prior Act to responsible tribunals for participating jurisdictions[.]
In particular, s 193(1)(a)(i) of the National Law provides that:
A National Board must refer a matter about a registered health practitioner … to a responsible tribunal if … the Board reasonably believes, based on a notification or for any other reason ... the practitioner has behaved in a way that constitutes professional misconduct[.]
Section 193(2)(a)(i) of the National Law relevantly provides that a National Board must refer a matter, where it reasonably believes that a practitioner has behaved in a way that constitutes professional misconduct, to 'the responsible tribunal for the participating jurisdiction in which the behaviour the subject of the matter occurred'. SAT is the responsible tribunal for Western Australia, in which the alleged behaviour the subject of each of the grounds occurred.
Section 196(1) of the National Law states as follows:
After hearing a matter about a registered health practitioner, a responsible tribunal may decide —
(a)the practitioner has no case to answer and no further action is to be taken in relation to the matter; or
(b)one or more of the following —
(i)the practitioner has behaved in a way that constitutes unsatisfactory professional performance;
(ii)the practitioner has behaved in a way that constitutes unprofessional conduct;
(iii)the practitioner has behaved in a way that constitutes professional misconduct;
(iv)the practitioner has an impairment;
(v)the practitioner’s registration was improperly obtained because the practitioner or someone else gave the National Board established for the practitioner’s health profession information or a document that was false or misleading in a material particular.

The term 'professional misconduct' is nonexhaustively defined in s 5 of the National Law as follows:[20]
professional misconduct, of a registered health practitioner, 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[.]
[20] Original emphasis.
The term 'unprofessional conduct' is exhaustively defined in s 5 of the National Law as follows:[21]
[21] Original emphasis.
unprofessional conduct, of a registered health practitioner, 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, and includes —
(a)a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and
(b)a contravention by the practitioner of —
(i)a condition to which the practitioner’s registration was subject; or
(ii)an undertaking given by the practitioner to the National Board that registers the practitioner;
and
(c)the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practise the profession; and
(d)providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person’s well‑being; and
(e)influencing, or attempting to influence, the conduct of another registered health practitioner in a way that may compromise patient care; and
(f)accepting a benefit as inducement, consideration or reward for referring another person to a health service provider or recommending another person use or consult with a health service provider; and
(g)offering or giving a person a benefit, consideration or reward in return for the person referring another person to the practitioner or recommending to another person that the person use a health service provided by the practitioner; and
(h)referring a person to, or recommending that a person use or consult, another health service provider, health service or health product if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of that interest to the person before or at the time of giving the referral or recommendation[.]
The term 'unsatisfactory professional performance' is exhaustively defined in s 5 of the National Law as follows:[22]
unsatisfactory professional performance, of a registered health practitioner, means the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience[.]

Principles to be applied

[22] Original emphasis.

In Medical Board of Australia and McCarthy [2020] WASAT 12, the Tribunal[23] set out the principles to be applied in relation to the issue of conduct in professional disciplinary proceedings under the National Law at [147] [155] as follows:
[23] Judge Sharp DP, Ms C Wallace SM and Dr H Hankey SSessM.
147In the National Law, the term 'professional misconduct' is defined to include unprofessional conduct by a 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. The definition is inclusory and is not an exhaustive statement of that term. Thus 'professional misconduct' under the National Law can include professional misconduct which does not fall within any of the paragraphs in the definition of that term, for example conduct which is characterised as professional misconduct or its equivalent under earlier vocational disciplinary legislation.
148It follows from this that the test of whether professional misconduct has occurred still includes the test of 'infamous conduct in a professional respect' which was adopted in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750:
If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to the general medical council to say that he has been guilty of infamous conduct in a professional respect.
149The adjective 'infamous' is a term 'denoting conduct deserving of the strongest reprobation, and indeed so heinous as to merit, when proved, the extreme professional penalty of striking off': Felix v General Dental Council [1960] AC 704 at 720.
150The term 'unprofessional conduct' is defined to mean professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the [p]ractitioner's professional peers. The definition then includes examples of 'unprofessional conduct'. Unlike the definition of 'professional misconduct', the definition of 'unprofessional conduct' is an exhaustive statement of that term.
151In Dekker v Medical Board of Australia [2014] WASCA 216 (Dekker), the Court of Appeal made some general observations about the relevant principles to be applied by the Tribunal in matters of this nature. While accepting that these remarks were made expressly on the basis that they do not purport to provide a comprehensive explanation of the relevant principles to be applied, the Tribunal considers them to be useful in this context.
152The Court in Dekker said that it would be expected in a case of this kind that the Tribunal would first consider, and make careful findings of fact about, the medical practitioner's conduct and all the relevant circumstances in which it occurred: Dekker at [71]. The relevant circumstances would, at least ordinarily, include any standard, or specific professional duty, generally accepted within the medical profession at the time, which had potential application to the other primary facts as found: Qidwai v Brown [1984] 1 NSWLR 100 (Qidwai) at 106 and 107.
153The question of whether there existed a generally accepted professional standard or duty, and its content, would be questions of fact: Dekker at [72].
154The conventional ways in which such facts would be proved (in the absence of admission) would, generally speaking, involve, or include, the Board calling expert evidence from a person of good repute and competence within the medical profession to attest to the existence of the generally accepted standard or duty and its content, or to tender any relevant professional conduct rules (see, for example, Psychologists Board of Queensland v Robinson [2004] QCA 405 at [24]), or to point to any applicable statutory regime governing the conduct in question. In some cases a professional duty or obligation may be such that the Board would invite the Tribunal, having regard to the expertise of its members, to take notice of the fact of the obligation and its contents without the need for evidence. A duty not to have sexual relations with a patient might be an obligation of that kind: Dekker at [73].
155The Tribunal would then ordinarily make a conclusory finding, based on its primary findings of fact (including the existence of any generally accepted standard or duty), as to whether the medical practitioner's conduct in the particular circumstances as found would reasonably be regarded as improper by professional colleagues of good repute and competency generally. This conclusory finding is also a question of fact: Dekker at [74]. The conclusory finding and any anterior finding as to the existence and content of any generally accepted standard or professional duty are commonly interrelated: Qidwai at 107. For example, the more fundamental and important the generally accepted standard or duty, the more likely that the breach of it will allow the conclusion to be drawn that conduct of the practitioner in question would reasonably be regarded as improper by professional colleagues of good repute and competency generally. Thus, in the case of a doctor conducting a sexual relationship with a patient, not only might the Tribunal be able to infer the existence of a specific proscriptive duty in that regard, but the Tribunal might also (depending on the circumstances) infer that the conduct would be regarded as improper by professional colleagues of good repute and competency generally, without the need for specific expert evidence on that point: Dekker at [74].

Onus and standard of proof

In Medical Board of Australia and McCarthy, the Tribunal explained that an applicant Board bears the onus of proof to the civil standard ('on a balance of probabilities') and applying the Briginshaw approach,[24] which requires clear and cogent evidence to be adduced by the Board and for the Tribunal to feel an actual persuasion of the occurrence or existence of relevant facts before it can find a medical practitioner guilty of professional misconduct (or unprofessional conduct or unsatisfactory professional performance), as follows at [28] [30]:
28The standard of proof which the Board must meet in proving its case is the civil standard, namely proof on the balance of probabilities. However, in determining whether on the evidence this standard has been satisfied, the Tribunal will recognise that '[t]he seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony or indirect inferences': Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) per Dixon J at [362].
29As the High Court expressed the position in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, the significance of Briginshaw is that the seriousness of the matter and of its consequences does not affect the standard of proof, but the strength of the evidence necessary to establish a fact required to meet that standard on the balance of probabilities may vary according to the nature of what it is sought to prove.
30Allegations of unprofessional conduct are undoubtedly serious, and it is therefore considered in proceedings such as these that the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts before being satisfied that an allegation has been made out.
[24] See Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361362 (Dixon J).
The fact that Dr Lagrange has decided not to crossexamine any of the Board's witnesses, not to call or adduce any evidence, and not to make any submissions, in relation to the issue of conduct, does not alter the onus or standard of proof, or the application of the Briginshaw approach, in this case.

Codes and guidelines

Section 39 of the National Law provides that a National Board, such as the Board, 'may develop and approve codes and guidelines … to provide guidance to the health practitioners it registers … and … about other matters relevant to the exercise of its functions'. Section 41 of the National Law relevantly provides that 'a code or guideline approved by a National Board, is admissible in proceedings under this Law … against a health practitioner registered in a health profession for which the Board is established as evidence of what constitutes appropriate professional conduct or practice for the health profession'.
Pursuant to s 39 of the National Law, the Board has issued Good Medical Practice: A Code of Conduct for Doctors in Australia (March 2014) (Code) and Guidelines: Sexual boundaries in the doctorpatient relationship (12 December 2018) (Guidelines), which were both in operation at the time of Dr Lagrange's alleged conduct in relation to each of Patients 2 and 3 and which, pursuant to s 41 of the National Law, are admissible in this proceeding 'as evidence of what constitutes appropriate professional conduct or practice for the health profession [of medicine]' in respect of the matters concerning Patients 2 and 3.
Clause 1.1 of the Code describes its purpose, in part, as follows:[25]
Good medical practice (the code) describes what is expected of all doctors registered to practise medicine in Australia. It sets out the principles that characterise good medical practice and makes explicit the standards of ethical and professional conduct expected of doctors by their professional peers and the community. The code was developed following wide consultation with the medical profession and the community. The code is addressed to doctors and is also intended to let the community know what they can expect from doctors. The application of the code will vary according to individual circumstances, but the principles should not be compromised.
[25] Board's bundle, page 283 (italicised emphasis original and bolded emphasis added).
Clause 8.2 of the Code concerns 'professional boundaries' and states, in relevant part, as follows:[26]
Professional boundaries are integral to a good doctorpatient relationship. They promote good care for patients and protect both parties. Good medical practice involves:
8.2.1Maintaining professional boundaries.
8.2.2Never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care. This includes those close to the patient, such as their carer, guardian or spouse or the parent of a child patient. Specific guidelines on sexual boundaries have been developed by the Medical Board of Australia under the National Law [Section 39 of the National Law and Sexual boundaries: Guidelines for doctors issued by the Medical Board of Australia (available at: Board's bundle, page 297 (footnote reproduced in square brackets; italicised emphasis original and bolded emphasis added).

Clause 8.4 of the Code concerns medical records and states as follows:[27]

[27] Board's bundle, page 297 (emphasis added).

Maintaining clear and accurate medical records is essential for the continuing good care of patients. Good medical practice involves:
8.4.1Keeping accurate, uptodate and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients, medication and other management in a form that can be understood by other health practitioners.
8.4.2Ensuring that your medical records are held securely and are not subject to unauthorised access.
8.4.3Ensuring that your medical records show respect for your patients and do not include demeaning or derogatory remarks.
8.4.4Ensuring that the records are sufficient to facilitate continuity of patient care.
8.4.5Making records at the time of the events, or as soon as possible afterwards.
8.4.6Recognising patients' rights to access information contained in their medical records and facilitating that access.
8.4.7Promptly facilitating the transfer of health information when requested by the patient.

The Guidelines, which are crossreferenced in cl 8.2.2 of the Code, specifically concern maintaining professional boundaries in terms of sexual boundaries in the doctorpatient relationship. The Guidelines contains the following '[s]ummary' of the way in which the Guidelines supplement the provisions of the Code in relation to maintaining professional boundaries:[28]

Good medical practice involves 'never using your professional relationship to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care. This includes those close to the patient such as their carer, guardian or spouse or the parent of a child patient'.
Sexual misconduct is an abuse of the doctorpatient relationship. It undermines the trust and confidence of patients in their doctors and of the community in the medical profession. It can cause significant and lasting harm to patients.
These guidelines aim to provide guidance to doctors about establishing and maintaining sexual boundaries in the doctorpatient relationship. These guidelines complement 'Good medical practice: a code of conduct for doctors in Australia' (Good medical practice). Good medical practice describes what the Medical Board of Australia (the Board) expects of all doctors who are registered to practise medicine in Australia.
Doctors who breach these guidelines are placing their registration at risk and in some cases could be committing a criminal offence.
[28] Board's supplementary bundle, page 146 (original emphasis).

Clause 2 of the Guidelines explains why breaching sexual boundaries 'is unethical and harmful', as follows:[29]

Doctors are expected to act in their patient's best interests and not use their position of power and trust to exploit patients physically, sexually, emotionally or psychologically. Breaching sexual boundaries is always unethical and usually harmful for many reasons including:
· Power imbalance: The doctorpatient 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 doctorpatient 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.
[29] Board's supplementary bundle, page 147 (original emphasis).

Clause 3 of the Guidelines explains that breaches of professional boundaries in terms of sexual boundaries involves a 'spectrum of behaviours', 'from making unnecessary comments about a patient's body or clothing, to criminal behaviour such as sexual assault', and also states, specifically, that '[u]nwarranted physical examinations or inappropriate touching during a consultation and examination may constitute sexual assault'.[30] Clause 3.1 of the Guidelines states as follows:[31]

[30] Board's supplementary bundle, page 147.

[31] Board's supplementary bundle, page 147 (footnotes not reproduced; emphasis added).

Breaches of sexual boundaries include:
·  engaging or seeking to engage in a sexual relationship with a patient regardless of whether the doctor believes the patient consented to the sexual relationship
·  conducting a physical examination which is not clinically indicated or when the patient has not consented to it. An unwarranted physical examination may constitute sexual assault or abuse
·  behaviours of a sexual nature including:
-making sexual remarks including sexual humour or innuendo
-flirtatious behaviour
-touching patients in a sexual way
-engaging in sexual behaviour in front of a patient
-using words or acting in a way that might reasonably be interpreted as being designed or intended to arouse or gratify sexual desire

·  asking a patient about their sexual history or preferences, when these are not relevant to their healthcare and without explaining why it is necessary to discuss these matters
·  sexual exploitation or abuse
·  sexual harassment
·  sexual assault.

The term 'sexual harassment' is defined in the Guidelines as including 'making an unsolicited demand or request for sexual favours, either directly or by implication' and 'requests for sex …'.[32]

Application of the National Law to conduct that occurred prior to the commencement of the National Law

[32] Board's supplementary bundle, page 151.

The alleged conduct the subject of ground 1 occurred in the 1980s and early 1990s, when Dr Lagrange was registered as a medical practitioner under the Medical Act, and well before the commencement of the National Law on 18 October 2010. As the Tribunal[33] explained in Pharmacy Board of Australia and Hamilton [2021] WASAT 138 at [22] [23], there is a presumption in statutory interpretation against the retrospective operation of a statute, and it requires a clear expression of statutory intention to permit a statute that commenced after the conduct in question occurred to be construed so as to apply to that conduct. However, for the reasons given by the Tribunal in Pharmacy Board of Australia and Hamilton at [46] [55], on its proper interpretation, s 35(1)(i) of the National Law (and s 193 of the National Law) rebuts the presumption against retrospectivity in relation to alleged conduct by a registered health practitioner under the National Law that occurred prior to the commencement of the National Law. Indeed, as the Tribunal said at [46], s 35(1)(i) and s 193 of the National Law require, in circumstances where a registered health practitioner's alleged conduct occurred prior to the commencement of the National Law and when the registered health practitioner was registered under a prior professional registration and disciplinary statute (such as ground 1 in this case), 'the Tribunal to determine the issue and characterisation of the practitioner's conduct and the issue of penalty in consequence of the practitioner's conduct … under s 196 of the National Law and not under [the earlier professional registration and disciplinary statute under which the registered health practitioner was registered at the time of the alleged conduct] …'.

Ground 1 – Engaging in sexual conduct with Patient 1

Evidence and findings in relation to conduct

[33] Judge Parry DP, Mr J Mansveld SM and Ms D Pearson SessM.

Patient 1 is the Board's principal witness in relation to ground 1. Patient 1 gave detailed evidence of the respondent's intimate or sexual conduct with her, in her police statement and in her witness statement, in terms of five specific incidents of intimate or sexual conduct between Dr Lagrange and herself at her home in early 1987, April 1987, June 1987, July 1987, and August or September 1990, while she was Dr Lagrange's patient, as well as a course of sexual conduct which took place after the first specific incident she describes in early 1987 'whenever I would see [Dr Lagrange] at the surgery and when I … sat down', in which Dr Lagrange 'would push his leg inbetween [sic] my legs as far as he could and would then move his leg in an up and down motion'.[34]
[34] Patient 1's police statement, para 48.
In an email to AHPRA dated 20 August 2018, Dr Lagrange's solicitor 'confirm[ed] my instructions that my client denies each and every allegation of sexual misconduct alleged by [Patient 1]'.[35] Furthermore, in the respondent's response to the Boards grounds of application, Dr Lagrange does 'not agree' with Patient 1's allegations of sexual conduct as particularised in the Board's grounds of application, 'save that the [r]espondent agrees that he was a treating doctor to Patient 1 around about the period March 1985 September 1990'.[36]
[35] Board's bundle, page 59.
[36] Respondent's response, para 2.
However, as indicated earlier, Dr Lagrange did not require any of the Board's witnesses for crossexamination and Dr Lagrange has not given or adduced any contrary evidence to the evidence given by any of the Board's witnesses.
We note that although Patient 1 told her friend MV about the first incident she gives evidence about shortly after it happened, she did not tell her husband or anyone else, and did not make any report to any health regulator or police, about Dr Lagrange's conduct until she first told her husband in early December 2017, gave her police statement on 29 December 2017, and made a notification to AHPRA on 22 May 2018. However, for the reasons given at [61] [65] below, it is perfectly understandable that Patient 1, being, in the late 1980s and early 1990s, married with young children and aged in her mid to late 20s, would not have told her husband or any authority about Dr Lagrange's conduct at the time it occurred, and would only come to do so, in 2017 2018, after reflection upon the events of her life and when aged in her mid 50s.
Patient 1 gives clear and cogent evidence of the five incidents and of Dr Lagrange's course of conduct of rubbing his leg between her legs, and demonstrates in her evidence an actual recollection of the events. Patient 1's evidence as to Dr Lagrange's conduct was not challenged or contradicted by any other evidence. We find Patient 1 to be a truthful and credible witness and we accept the whole of her evidence. We are satisfied on a balance of probabilities and feel an actual persuasion on Patient 1's evidence, and find, that during the period 1987 to 1990, Dr Lagrange engaged in sexual conduct with Patient 1, while she was his patient, as detailed below.

Incident 1 – Early 1987

After Patient 1 married and moved in with her husband in 1981, she started to see Dr Lagrange as her general practitioner, because the medical centre where he worked was near her home. Other than on one occasion, sometime in 1984, when Patient 1 called the medical centre and requested that Dr Lagrange do a house call, all of Patient 1's consultations with Dr Lagrange, and all of the consultations to which she took her children to be seen by Dr Lagrange, occurred at the medical centre where he worked. Patient 1 describes Dr Lagrange as 'very friendly to me and as he got to know me he would hug me and kiss me on the cheek when I would go to the surgery',[37] although she notes that Dr Lagrange 'did not however hug and kiss me if [her husband] was around or as my children got older'.[38]
[37] Patient 1's police statement, para 9.
[38] Patient 1's police statement, para 10.
The first specific incident of sexual, or at least intimate, conduct by Dr Lagrange with Patient 1, about which she gives evidence, occurred in 'early 1987' when it 'was still hot'.[39] At between 12 pm and 1 pm on a weekday, when her husband was at work and her son was asleep in his bedroom, Patient 1 'heard a knock on the door and went and answered it and I could see that it was [Dr Lagrange]'.[40] As Patient 1 said in evidence, 'I was surprised to see him as I had not made an appointment with him'.[41] Patient 1 gave the following evidence in relation to what occurred during the first incident, which we accept:[42]
[39] Patient 1's police statement, para 28.
[40] Patient 1's police statement, para 30.
[41] Patient 1's police statement, para 31.
[42] Patient 1's police statement, paras 35 45.
35.[Dr Lagrange] told me to come and sit down. We went into the lounge room and my three seater sofa was up against the wall that divides the lounge and kitchen. It was next to the entrance/hall way.
36.As we walked into the lounge area from the kitchen [Dr Lagrange] put his arm around me and then gave me a hug.
37.The hug lasted about half a minute and I embraced the hug as it made me feel special.
38.[Dr Lagrange] said "I just think you need a bit of loving." I will remember these words till [sic] the day I die.
39.When he said this, I felt comforted by the remark, but I was also scared.
40.After the hug [Dr Lagrange] said for us to sit down.
41.[Dr Lagrange] sat on the left side of the sofa and I sat to the right, as you look away from the sofa.
42.He placed his right arm around me and then he started to caress my back and left arm.
43.[Dr Lagrange] started kissing me. I responded to this kiss and it made me feel special. I think we kissed about three times.
44.We were sat on the sofa for about 10 minutes and did have a conversation but I cannot recall what we talked about. [Dr Lagrange] got up to leave and gave me a peek [sic peck] on the cheek at the front door.
45.I immediately felt guilty, weird and I felt a little bit special.
In her witness statement, Patient 1 confirms that what occurred during incident 1 'is accurately described' in the paragraphs set out immediately above,[43] and gives evidence, which we accept, that when Dr Lagrange kissed her, as referred to in para 43 of Patient 1's police statement, 'the kisses were on my lips and were long kisses, not pecks'.[44]
[43] Patient 1's witness statement, para 33.
[44] Patient 1's witness statement, para 34.
About 15 minutes after Dr Lagrange left, Patient 1 received a telephone call from her friend MV and, as Patient 1 said in evidence, 'I told her what had happened'.[45] MV broadly corroborates Patient 1's evidence that she told MV what happened with Dr Lagrange. MV recalls that Patient 1 'when telling me about this was shocked, but also flattered by the attention',[46] noting that Patient 1 'at this time was young, she was newly married and had only just had a child'.[47]
[45] Patient 1's police statement, para 46.
[46] MV's witness statement, para 12.
[47] MV's witness statement, para 15.
Incident 1 obviously involved intimate, if not sexual, conduct by Dr Lagrange with Patient 1. He did not come to her home for any medical reason, told her that she needed 'a bit of loving', and caressed and kissed her on the lips with long kisses. Dr Lagrange's conduct in terms of incident 1 was also clearly a prelude to his subsequent sexual conduct with Patient 1.
As indicated earlier, after incident 1, whenever Patient 1 went to see Dr Lagrange for a medical appointment at the surgery, 'he would push his leg inbetween [sic] my legs as far as he could and would then move his leg in an up and down motion'.[48] As Patient 1 said in her witness statement, '[t]his would usually happen when Dr Lagrange was examining me, for example when he was looking in my ears or throat or using a stethoscope' and '[h]e would do it even when I was holding one of my children'.[49] Obviously, this course of conduct was sexual. We find, on Patient 1's evidence, that Dr Lagrange engaged in this course of conduct on the many occasions when Patient 1 saw him during the period 1987 to 1990 at his surgery, both for her own medical reasons and for consultations for her children.

Incident 2 – April 1987

[48] Patient 1's police statement, para 48.

[49] Patient 1's witness statement, para 37.

The second specific incident of Dr Lagrange's sexual conduct with Patient 1, about which she gives evidence, occurred in about April 1987. Patient 1 knows that it was in about April 1987, because her friend BD was getting married on 2 May 1987. Patient 1 gave the following evidence in relation to this incident, which we accept:[50]
[50] Patient 1's police statement, paras 51 66.
51.I heard a knock on the door and went [sic] answered it. I was not expecting anyone.
52.When I opened the door I saw that it was [Dr Lagrange]. Upon seeing him my heart fluttered and I invited him in.
53.He hugged and kissed me and we ended up in the lounge room.
54.He asked me to sit on carpet and I sat down inbetween [sic] the lounge and dining room.
55.[Dr Lagrange] unbuttoned his shirt and also sat down. We were sat side by side but facing each other.
56.I was wearing a two piece outfit, it would have been a skirt and top, this was what I normally wore.
57.[Dr Lagrange] undid his trouser [sic] and I remember that he was wearing dark red jocks. He pulled down his trousers and his pair of jocks to his knees.
58.[Dr Lagrange's] penis was already erect. His penis was about 15cm in length and the thickness of his penis was approximately the size of the bottom of [a] polystyrene cup.
59.[Dr Lagrange's] penis is circumcised and he shaved his pubic hair. His testicles looked heart shaped. The colour of his penis was a pale pink.
60.[Dr Lagrange] began to masturbate and then placed my right hand on his penis, with his right hand and encouraged me to rub, which I did.
61.Whilst I was rubbing his penis, [Dr Lagrange] rolled up my skirt and began to rub my clitoris. I do not think that he put his fingers inside my vagina.
62.We did this for about five minutes and we did not say anything to each other.
63.[Dr Lagrange] ejaculated onto his stomach.
64.He immediately got up and went to the toilet to clean himself. After cleaning himself we had a hug and he kissed my cheek by the front door and he left.
65.I felt guilty about what had occurred and I was scared that my husband would find out.
66.I did not get any enjoyment out of it and I feel that [Dr Lagrange] had power over me. He took control of the situation, however I did not fight or resist and I did not say no, I just went along with what he wanted.
In her witness statement, Patient 1 confirms that what occurred during incident 2 'is accurately described' in the paragraphs set out immediately above.[51]
[51] Patient 1's witness statement, para 40.
Patient 1 also recalls another occasion in April 1987 when BD was visiting her and they were getting ready for BD's wedding and Dr Lagrange knocked on the door. As Patient 1 said in her evidence, '[Dr Lagrange] told me to get rid of [BD], I knew that he wanted me to get rid of [BD] so we could be intimate with each other'.[52] However, Patient 1 said that she would not get rid of BD and Dr Lagrange left after about five minutes. Given that Dr Lagrange did not attend Patient 1's home for a medical appointment and given his sexual conduct with Patient 1 at her home earlier in the same month, it is obvious that Dr Lagrange wanted to have sexual conduct with Patient 1 again, but was unable to do so because of BD's presence.

Incident 3 – June 1987

[52] Patient 1's police statement, para 74.

The third specific incident of sexual conduct, about which Patient 1 gives evidence, occurred at around lunch time on a week day, when her husband was at work and her son was asleep, in June 1987. Patient 1 recalls the date because she had received photos of BD's wedding, which took place in early May 1987. Patient 1 was doing ironing and saw Dr Lagrange's car in her driveway. Patient 1 gave the following evidence in relation to the third incident, which we accept:[53]
[53] Patient 1's police statement, paras 83 91.
83.[Dr Lagrange] stopped and came to the front door and he immediately kissed me on the cheek.
84.In between the lounge and entry hallway [Dr Lagrange] lied [sic] down and lowered his trousers and underwear to below his knees.
85.He pulled up his shirt. I could see that his penis was erect.
86.[Dr Lagrange] removed my underwear and lifted up my skirt and encouraged me to sit on him, sitting across his thighs.
87.I started to rub his penis while I moved my clitoris on his testicles.
88.After a few minutes [Dr Lagrange] climaxed onto his stomach. This was an intense experience for him.
89.As soon as [Dr Lagrange] climaxed he said "You better not of got any of that on you?" He said this in a fearful manner.
90.I told him that I had not touched it.
91.[Dr Lagrange] got up and went into the toilet. He then left after giving me a kiss on the cheek.
In her witness statement, Patient 1 confirms that what occurred during incident 3 'is accurately described' in the paragraphs set out immediately above.[54]

Incident 4 – July 1987

[54] Patient 1's witness statement, para 43.

Patient 1 gave evidence that just prior to 12.30 pm on a working day sometime in July 1987, while she was waiting for the landlord to come to do an inspection, she heard a knock on the door and, when she opened it, she saw that it was Dr Lagrange. She immediately told Dr Lagrange that the landlord was coming to do an inspection and that he had to go. However, Dr Lagrange 'walked into the house and said "No we still got time"'.[55] Patient 1 replied 'No, he is going to be here anytime [sic]'.[56]
[55] Patient 1's witness statement, para 98.
[56] Patient 1's witness statement, para 99.
Patient 1 gave the following evidence in relation to the fourth incident, which we accept:[57]
[57] Patient 1's police statement, paras 100 118.
100.He took hold of my hand and walked me to the middle of the lounge.
101.I did not want to go with him, [Dr Lagrange] pulled me into the middle of the lounge room, this was not aggressive but he would have been able to tell that I did not want to go.
102.[Dr Lagrange] undid his trousers and dropped them. I am not sure what he did with his underwear but he exposed his penis and it was erect.
103.He took hold of my left hand and put it on his penis. He began to move his hand which was on my hand up and down on his penis.
104.I had frozen, I had said no to [Dr Lagrange] and I did not want to do what he was doing.
105.When I froze it was like I had left my body.
106.[Dr Lagrange] put both his hands onto my shoulder and pushed me onto my knees.
107.I was still frozen, I had lost control of my body due to what was happening. [Dr Lagrange] had to physically push me onto my knees. This was not a violent action as I was not actively resisting but I did not voluntarily go onto my knees.
108.[Dr Lagrange] pushed his erect penis into my mouth.
109.I did not voluntarily open my mouth. [Dr Lagrange] began to move his hips which moved his penis in and out of my mouth.
110.[Dr Lagrange] did this until he ejaculated in my mouth, which I swallowed, as I was still frozen and did not have control of my body.
111.From entering my house to ejaculating took only around two minutes.
112.I did not move my body in anyway [sic]. My whole body was frozen and I could not believe what was happening to me.
113.I had said no and my body also said no by freezing.
114.I felt violated, disgusted, used and dirty by [Dr Lagrange's] behaviour.
115.[Dr Lagrange] removed a tissue and wiped his penis from his pocket and then went to the bathroom.
116.He went to leave and I said 'I wonder how many other women you are visiting?'
117.[Dr Lagrange] said 'Oh what do you mean.'
118.[Dr Lagrange] left and did not kiss me.
In her witness statement, Patient 1 confirms that what occurred during incident 4 'is accurately described' in the paragraphs set out immediately above.[58]
[58] Patient 1's witness statement, para 46.
Incident 4 not only involved sexual conduct by Dr Lagrange with Patient 1, but arguably sexual assault upon her. She told Dr Lagrange to go, said 'no' and did not want to participate, describes herself as 'frozen' during the incident, and says that she 'felt violated, disgusted, used and dirty by [Dr Lagrange's] behaviour'.
After incident 4, Patient 1 'continued to use [Dr Lagrange] as my family doctor',[59] as 'I trusted [Dr Lagrange] as a Doctor and he was good with the kids'.[60] Dr Lagrange continued to kiss Patient 1 when greeting her and he kept 'putting his leg inbetween [sic] my legs and moving it' when she saw him at the surgery.[61]
[59] Patient 1's police statement, para 119.
[60] Patient 1's police statement, para 119.
[61] Patient 1's police statement, para 120.
Patient 1 also recalls an occasion between incidents 4 and 5 when Dr Lagrange was performing a PAP smear on her when he said words to the effect '[y]our vagina is very wet, I wonder why that is'.[62] Plainly, these words involved sexual conduct by Dr Lagrange.

We consider these to be serious breaches of fundamental duties of medical practitioners under the Guidelines and the Code.

Whether conduct was incompetent, and if so, to what level

In Lagrange (at [136]), the Tribunal found that Dr Lagrange engaged in unsatisfactory professional performance in terms of the conduct in each of grounds 4, 5, 6 and 7 in respect of Patient 3; that being:
a)failing to take a proper history from Patient 3;
b)failing to order necessary tests for Patient 3;
c)failing to prescribe appropriate medication for Patient 3; and
d)failing to discuss appropriate follow-up action with Patient 3.
We are satisfied that his failure to order necessary tests, prescribe appropriate medication and discuss appropriate follow-up demonstrates a lack of clinical competence and knowledge of contemporary practice, which casts doubt on whether Dr Lagrange could maintain an appropriate level of competency if there was any prospect of his registration being regained.

Any special skills possessed by the practitioner

There is no evidence that Dr Lagrange possesses special skills of which the general public should be availed, despite his impugned conduct.

Practitioner's personal circumstances at the time of conduct and imposing sanction

Dr Lagrange submits, without adducing any evidence, that we should take into account, before determining the quantum of a fine, that the proceedings will have an adverse effect on his reputation and his finances (particularly as he states that is currently retired), and that he will (likely) need to meet a significant costs order.
However, any impact on his reputation is an inevitable consequence of his misconduct.
Further, other than to accept the general proposition that a person would be financially worse off in having to pay a fine, we have no evidence of his capacity to pay a fine.
Dr Lagrange also relies on the reports of Dr V Pascu and Ms Volleman in submitting that he experiences difficulties with emotional and behavioural regulation arising from his childhood and adolescence, and the impact from sexual interference from his mother when he was 13 to 15 years old.
While the origins of Dr Lagrange's difficulties with emotional and behavioural regulation are relevant to understanding their cause it is not mitigatory in disciplinary proceedings which are concerned with the imposition of a penalty for the purposes of the protection of the public and, if anything, heightens our concerns about the need to protect the public from him.

Any other relevant matters to practitioner's fitness to practice, other aggravating or mitigating matters

Beyond the specific matters raised above about the circumstances of Dr Lagrange's conduct which aggravates the misconduct, there are no additional aggravating matters raised by the parties to be considered.

Conclusion

As we have said, we consider that the imposition of a global penalty is appropriate.
We have no confidence that Dr Lagrange will ever be fit to practice in the future. We are satisfied that, having regard to all of the matters referred to above, given the severity of Dr Lagrange's misconduct against Patients 1, 2 and 3, his history of taking advantage of vulnerable female patients, the ineffectiveness of the penalties previously imposed, his lack of remorse, and that the purpose of disciplinary proceedings is the protection of the public, Dr Lagrange's registration should be cancelled, with a disqualification period of 25 years.
Given that Dr Lagrange has demonstrated instances of calculated and opportunistic sexual misconduct and has failed to demonstrate any insight into his behaviours, prohibition orders should also be made prohibiting him from providing any healthcare service for 25 years, because we have no confidence that he will not take advantage of a person with whom he comes into contact in a healthcare setting.
We will also make a prohibition order prohibiting Dr Lagrange from using the honorific 'doctor' for 25 years.
Doctors are held in a special position of trust by the general public, and Dr Lagrange no longer deserves to hold that special privilege.
Further, the use of the title doctor, even in his everyday life, may, because of the trust that it engenders in member of the public, lead Dr Lagrange to be able to commit further acts of misconduct against persons who are not patients but with whom he comes into contact.
We find that a reprimand is appropriate to emphasise the Tribunal's censure of the conduct. While the Board sought that the Tribunal issue a reprimand for each instance of professional misconduct, unprofessional conduct or unsatisfactory professional performance, we decline to do so. We consider it sufficient to issue one reprimand for the totality of the conduct which is dealt with in these reasons.
We decline to impose a fine in this case. A fine may be appropriate in cases where, for example, it underscores a reprimand or where it is a penalty which is thought will deter the practitioner from further improper conduct. In this case however, we consider that the seriousness of the conduct will be appreciated by the public and by Dr Lagrange as a consequence of the imposition of the career ending period of disqualification from registration. In that circumstance we conclude that there is no legitimate reason to impose a fine in this case.

Costs

Relevant legal principles

The starting position on whether the Tribunal should award a party's costs in proceedings before the Tribunal is set out in s 87(1) of the SAT Act, which relevantly provides that each party is to bear its own costs, unless otherwise specified in the SAT Act, the enabling legislation or orders of the Tribunal.
Section 195 of the National Law is one such provision under the enabling legislation which provides that the Tribunal may make any order about costs it considers appropriate for the proceedings.
The Tribunal's established practice in relation to the exercise of its discretion as to costs in vocational disciplinary proceedings is that a successful application by a vocational regulatory body will usually result in an order for costs being made in favour of the body: Medical Board of Western Australia and Roberman [2005] WASAT 81 (S); (2005) 39 SR(WA) 47 (Roberman) at [30] referred to with approval in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [35].
The policy basis behind this practice 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': Roberman at [30].
If satisfied that a costs order is warranted, the Tribunal embarks on a 'stringent approach to cost' (Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) (Marvelle)) at [35], Western Australian Planning Commission and Scutti [2019] WASAT 99 at [86]) and will undertake the assessment of costs in a 'relatively robust fashion' (Marvelle at [49]), taking a 'robust and broad brush approach' (Costley at [66]).
The Tribunal will usually require a determination as to what costs are reasonable given the nature of the matter, its complexity, its importance, possibly its urgency, and the amount of time and effort required to properly prepare and present the case: J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S)at [9].
There is no prescribed scale of costs in relation to work done in proceedings before the Tribunal, although relevantly the Legal Profession (State Administrative Tribunal) Determination 2018 (2018 Determination) and Legal Profession (State Administrative Tribunal) Determination 2020 (2020 Determination) prescribes the maximum amount which a legal practitioner can charge a client without a written agreement as to costs.
The Tribunal has adopted a practice of using the relevant SAT Determination as a guide to the maximum rates which might be allowed in the Tribunal on a party-party basis for an hourly or daily rate: Marvelle at [35] and [47], Legal Profession Complaints Committee v in de Braekt [2012] WASAT 58 (S); (2012) 80 SR(WA) 194 (in de Braekt) at [53].
However, even if prescribed scales are used as a guide, the approach of the Tribunal is not to look at what has actually been charged to the client, but rather what reasonable allowance should be made: Costley at [66].

Consideration

We are satisfied that the Board has been successful in its case and will adopt the policy rationale for making a costs order in favour of vocational regulatory bodies by making a costs order against Dr Lagrange.
We consider it appropriate in the circumstances to apply the 2018 Determination and 2020 Determination as setting the hourly or daily maximum rates to be allowed, where the Board has submitted an itemised schedule of its costs for work conducted from October 2019 to February 2022, and particularly where significant work was undertaken to get the matter up.
Whilst Dr Lagrange elected not to cross-examine the Board's witnesses, and agreed for the matter to be determined on the documents, the time and expense saved with these concessions are reflected in the absence of costs sought for the preparation of, and attendance at, a hearing.
Given that he did not otherwise make any concession or admission in response to the disciplinary allegations, it has been necessary for the Board to prepare all the evidence necessary for a hearing, albeit on the papers.
We are therefore generally satisfied that the items sought in the Board's schedule of costs are appropriate, and will deal with the specific challenges made to the Board's schedule of costs.
Firstly, Dr Lagrange disputes the cost claimed for preparing the applicant's bundles, which he says should have been prepared by a paralegal or law clerk rather than a senior practitioner, as it did not require the application of a high degree of legal expertise.
Whilst we agree that the collating and manual preparation of the bundle should have been undertaken by a paralegal or law clerk, the judgment as to what documents should be contained in the bundle, and (in some cases) sourcing such documents appropriately falls within the responsibility of the senior practitioner in charge of the matter.
Applying a robust approach in estimating a reasonable allowance for these items, we will allow 80% of the time spent on this item (11.4 hours) on the senior practitioner rate ($418 per hour) and 20% on the paralegal rate ($154 per hour), which reduces the total of these items from $4,765.20 to $4,163.28 ($3,812.16 plus $351.12).
Secondly, Dr Lagrange challenges the time claimed for preparing the amended grounds of application in respect of Patients 2 and 3 as excessive, having regard to the length, nature and complexity of those grounds.
We are satisfied however that the nature of each of the allegations in respect of Patients 2 and 3 are sufficiently different from each other, and each from those in respect of Patient 1, to justify the additional time spent on the grounds of application.
In particular, the grounds in respect of Patients 2 and 3 involved allegations of breaches of the Code and the Guidelines, whilst the grounds in respect of Patient 3 included various elements of unprofessional conduct or unsatisfactory professional performance.
Thirdly, Dr Lagrange challenges the item claimed in respect of the witness statement of the husband of Patient 1 as being of limited relevance as he did not directly witness any of the conduct constituting the misconduct.
However, given that the events on which she was called to give evidence occurred 30 years ago, it was an entirely reasonable approach for the Board to ask her husband in 2019 to give an account of the surrounding circumstances, which was well before the Board knew what Dr Lagrange's approach to the proceedings was going to be.
We are therefore satisfied that it is reasonable to make an allowance for the preparation of the witness statement of Patient 1's husband, and that the amount claimed by the Board for doing so is reasonable.
We will make an order for Dr Lagrange to pay the Board's costs and disbursements fixed in the amount of $76,943.58.

Orders

To give effect to the reasons set out above, the Tribunal will make the following orders:
The Tribunal orders:
1.The respondent is reprimanded in relation to the professional misconduct, unprofessional conduct and unsatisfactory professional performance referred to in the Tribunal's order dated 17 December 2021.
2.The respondent's registration as a medical practitioner is cancelled.
3.The respondent is disqualified from applying for registration as a registered health practitioner for 25 years from the date of this order.
4.The respondent is prohibited, for 25 years from the date of this order, from:
(i)providing any health service within the meaning of the Health Practitioner Regulation National Law (WA) Act 2010 (WA); and
(ii)using the honorific 'doctor'.
5.The respondent is to pay the applicant's costs fixed in the sum of $76,943.58 within 28 days of this order or such further time as may be agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS K Y Loh, MEMBER

22 NOVEMBER 2022