MEDICAL BOARD OF AUSTRALIA and MYERS
[2014] WASAT 137 (S)
•19 FEBRUARY 2015
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| ACT | : HEALTH PRACTITIONER REGULATION |
NATIONAL LAW (WA) ACT 2010
| CITATION | : | MEDICAL BOARD OF AUSTRALIA and MYERS [2014] WASAT 137 (S) |
| MEMBER | : | JUSTICE J C CURTHOYS (PRESIDENT) MS N OWEN-CONWAY (MEMBER) DR H HANKEY (SENIOR SESSIONAL MEMBER) |
| HEARD | : | DETERMINED ON THE DOCUMENTS |
| DELIVERED | : | 19 FEBRUARY 2015 |
| FILE NO/S | : | VR 81 of 2013 |
| BETWEEN | : | MEDICAL BOARD OF AUSTRALIA Applicant |
| AND | ||
| JOHN BARRY MYERS Respondent | ||
| Catchwords: |
Medical practitioner - National Law - Indecent assault - Sexual remarks -
Professional misconduct - Penalty - Cancellation of registration
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 3, s 4, s 196
[2014] WASAT 137 (S)
Result:
Respondent disqualified from applying for re-registration as a registered health
practitioner for a period of five years
Respondent fined $10,000 under s 192(2) of the National Law
Respondent to pay Medical Board of Australia's costs and disbursements at the
scale provided for as if the proceedings had been in the Supreme Court of
Western Australia
Summary of Tribunal's decision:
On 23 October 2014, the Tribunal found Dr John Barry Myers, a medical practitioner, guilty of professional misconduct between 14 and 19 June 2012. Following this finding, the parties were invited to make submissions as to penalty.
The Tribunal considered the appropriate sanction and penalties pursuant to s 196(2), s 196(3) and s 196(4) of the Health Practitioner Regulation National Law (WA) Act 2010. The appropriateness of the sanction and penalties to be imposed by the Tribunal are affected by the seriousness of the conduct.
The Tribunal determined that:
1. Dr Myers' conduct in relation to the patient the subject of the Tribunal's findings is serious of itself.
2. Overall, Dr Myers' actions represent a persistent inability to recognise the appropriate boundaries between a medical practitioner and a patient.
3. Dr Myers' pattern of boundary violations dates back to 2004.
4. Dr Myers had failed to be deterred by a caution, counselling or a fine.
5. Dr Myers' conduct in this matter as compared to his previous disciplinary record shows an escalating pattern of conduct on his part.
6. Dr Myers poses too great a risk to the public to be able to practise any longer.
Dr Myers does not hold registration under the National Law. The appropriate disciplinary order under s 196(4) of the National Law is that he be disqualified from applying for re-registration as a registered health practitioner for a period of five years.
In addition, a substantial fine is required to reflect the seriousness of Dr Myers' conduct. The Tribunal determined that Dr Myers be fined $10,000 under s 192(2)(c) of the National Law.
[2014] WASAT 137 (S)
Dr Myers is to pay the Medical Board of Australia's costs and disbursements at the scale provided for as if the proceedings had been in the Supreme Court of Western Australia.
Category: B
Representation:
Counsel:
| Applicant | : | Mr MD Cuerden |
| Respondent | : | In Person |
Solicitors:
| Applicant | : | MDS Legal |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253
A Solicitor v Council of the Law Society of NSW [2004] HCA 1;
(2004) 216 CLR 253
Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438
Chamberlain v Law Society of the Australian Capital Territory (1993)
118 ALR 54
Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62
Craig v Medical Board of South Australia (2001) 79 SASR 545
Craig v Medical Board of South Australia [2001] SASC 169
Jemielita v Medical Board of Western Australia (unreported, WASC Library No
920584, 13 November 1992)
Law Society of New South Wales v Foreman (1994) 34 NSWLR 408
Law Society of New South Wales v Walsh [1997] NSWCA 185
Legal Practitioners ComplaintsCommittee v Thorpe [2008] WASC 9
Legal Profession Complaints Committee and A Legal Practitioner [2013]
WASAT 37(S)
| Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S) Legal Profession Complaints Committee and in de Braekt [2013] WASAT 124 Legal Profession Complaints Committee and Leask [2010] WASAT 133 Legal Profession Complaints Committee v Brickhill [2013] WASC 369 Legal Profession Complaints Committee v Detata [2012] WASCA 2014 Legal Profession Complaints Committee v Lashansky [2007] WASC 211 Legal Profession Complaints Committee v Love [2014] WASC 389 Legal Profession Complaints Committee v Masten [2011] WASC 71 Legal Profession Complaints Committee v Segler [2014] WASC 159 Legal Profession v O'Halloran [2013] WASC 430 Medical Board of Australia and Myers [2014] WASAT 137 New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 | [2014] WASAT 137 (S) |
NSWLR 279
New South Wales Bar Association v Evatt (1968) 117 CLR 177
NSW Bar Association v Hamman [1999] NSWCA 404
Quinn v Law Institute of Victoria [2007] VSCA 122
Re A Practitioner (1984) 36 SASR 590
Re H (a Barrister) [1981] 1 WLR 1257
Re Maraj (a Legal Practitioner) (1995) 15 WAR 12
Smith v New South Wales Bar Association [1992] HCA 36; (1992)
176 CLR 256
Stirling v Legal Services Commissioner [2013] VSCA 374
[2014] WASAT 137 (S)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
1 On 23 October 2014, following a hearing over three days, the
Tribunal found Dr John Barry Myers, a medical practitioner, guilty of professional misconduct for the purposes of s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (WA) Act 2010 (National Law) - see Medical Board of Australia and Myers [2014] WASAT 137 (Myers).
2 The Tribunal is empowered to impose penalties pursuant to s 196(2),
s 196(3) and s 196(4) of the National Law. The Tribunal determined that Dr Myers engaged in professional misconduct between 14 and 19 June 2012 in that:
1.1 On an occasion when the patient was doing a crossword
in her room, Dr Myers:1.1.1 entered [the patient's] room and shut the door behind him;
1.1.2
moved behind [the patient]; 1.1.3 while enquiring how she was, put his right arm over her shoulder and fondled one of [the patient's] breasts without her consent; and
1.1.4
subsequently went to leave the room, said words to [the patient] to the effect of 'he would have another hug' and then hugged [the patient] and fondled her breast again while doing so, without her consent.
1.2 The following morning, Dr Myers said to [the patient] words to the effect that 'he felt a lot of ladies needed a breast massage in the hospital but not to tell anyone because they'll all want it'. 1.3 One evening, Dr Myers visited [the patient] and kissed her on the cheek and said words to the effect of 'Goodnight sweetie, I'll see you tomorrow'. 1.4 On another occasion, Dr Myers attempted to hug [the patient] while she was standing and asked her to kiss him.
[2014] WASAT 137 (S)
1.5
Dr Myers said to [the patient] on several occasions, words to the effect of 'he wanted her to suck his cock' and 'he wanted to put his cock between her breasts' and 'rub his cock all over her body'.
1.6
Dr Myers also told [the patient] how gorgeous she is and while standing next to her said words to the effect of 'feel it, see how stiff you're making me'. On that occasion, [the patient] told Dr Myers to go away and behave himself. Dr Myers did so but returned an hour later saying words to the effect of 'he was going to be good but couldn't help himself'.
1.7
One day, [the patient] was about to get up to have lunch when Dr Myers came into her room, leaned over and patted her twice on the bottom. When [the patient] looked up in response, Dr Myers said words to the effect of 'it's alright but I just wanted to smack your bottom'.
1.8 Dr Myers touched and rubbed [the patient's] knee and
stroked her hand.1.9 On various other occasions, Dr Myers said to [the patient]
words to the effect that:1.9.1 'if she had a computer, they could make passionate love over the computer'
1.9.2 'think of him when she makes passionate love to
her husband'1.9.3 'he would like to get inside her robe with her' and
said to [the patient] words to the effect that:1.9.4
he had a double bed at his house and gave her directions to go there and stay with him one weekend and
1.9.5 she was sumptuous, beautiful and sexy.
The parties' submissions
In its submissions filed 17 November 2014, the Board sought the following orders:
[2014] WASAT 137 (S)
16.1. a reprimand pursuant to section 192(2)(a) of the National Law; 16.2 a fine pursuant to section 196(2)(c) of the National Law in the sum
of $30,000; and16.3 an order pursuant to section 196(4)(a) of the National Law disqualifying the practitioner from applying for re-registration as a registered health practitioner for a period of five years.
4 Dr Myers was granted seven weeks within which to file his
submissions on penalty. Dr Myers then requested and was granted an extension to 4 December 2014 to file his submissions. Despite reminders from the Tribunal, he has failed to do so. The Tribunal has decided that Dr Myers has had more than sufficient time and that it should proceed to decide the penalty without his submissions.
Legal framework and principles
Section 3 of the National Law sets out the objectives and guiding principles. Relevantly they are s 3(1)(a) and s 3(2)(a):
The object of this Law is to establish a national registration and accreditation scheme for -
the regulation of health practitioners; [and]
The objectives of the national registration and accreditation scheme are -
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[.]
Section 4 of the National Law provides:
An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in section 3.
7 Section 196 of the National Law provides that if a responsible
tribunal, which for present purposes is this Tribunal, finds that a practitioner has behaved in a way that constitutes professional misconduct, it may decide to do one or more of the following:
…
(2) If a responsible tribunal makes a decision referred to in
subsection (1)(b), the tribunal may decide to do one or more ofthe following -
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(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 from using a specified title or providing a specified health service.
[2014] WASAT 137 (S)
Disciplinary sanctions - general principles
8 The jurisdiction of the Tribunal is protective rather than punitive, and
such protection runs to both the public and the profession (Craig v Medical Board of South Australia (2001) 79 SASR 545 at [41] (Craig); Re Maraj (a Legal Practitioner) (1995) 15 WAR 12 at 25 (Maraj); Legal Profession Complaints Committee v Love [2014] WASC 389 (Love) at [19]; Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 (Foreman) at 440G - 441A - B; Legal Profession Complaints Committee and in de Braekt [2013] WASAT 124 at [24] - [26]; NSW Bar Association v Hamman [1999] NSWCA 404 (Hamman) at [21] and at [77]).
9 The appropriate sanction is to be considered at the time of the
making of the sanction and not by reference to the date of the unprofessional acts (Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37(S) (A Legal Practitioner (S)) at [23]; Legal Profession Complaints Committee v Segler [2014] WASC 159 (Segler) at [7]; A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253 (A Solicitor [2004] NSW) at [15]; Love at [16]).
10 It is the practitioner's conduct that attracts any sanction (A Legal Practitioner (S) at [24]; Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 267 - 268 and 271 - 272; A Solicitor [2004] NSW).
As the Tribunal explained in A Legal Practitioner (S) at [24]:
… [I]n determining the appropriate penalty, care needs to be taken that the penalty reflects the matters with which the practitioner is charged and not other conduct including the defence of the action by the practitioner which is ultimately held to be unsuccessful: Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 (Smith) at 267 - 268 and 271 - 272[.]
Twelve matters for consideration
12 In determining an appropriate sanction, twelve matters may require
consideration. Those matters are interrelated and are not mutually
exclusive. The list of matters is not exhaustive. The twelve matters are:1) any need to protect the public against further misconduct by the practitioner (Craig at [47]; Legal Profession Complaints Committee and Amsden [2014] WASAT
[2014] WASAT 137 (S)
57 (S) (Amsden (S)) at [8]; Foreman at 440C; Hamman
at [77]);2) the need to protect the public through general deterrence of other practitioners from similar conduct (Jemielita v Medical Board of Western Australia (unreported, WASC Library No 920584, 13 November 1992) (Jemielita); Johnson at [103]; Hamman at [77]);
3) the need to protect the public and maintain public confidence in the profession by reinforcing high professional standard and denouncing transgressions and thereby articulating the high standards expected of the profession (Amsden (S) at [8]; Foreman at 444F; and Hamman at [77] and at [79]), 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 (Craig at [64]; Johnson at [103]);
4) 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 (Johnson at [109]; Foreman at 445B - 445G);
5) whether the practitioner has breached any:
a) Act; b) Regulations; c) Guidelines or Code of Conduct, issued by the relevant professional body; and d) whether the practitioner has done so knowingly; 6)
whether the practitioner's conduct demonstrated incompetence, and if so, to what level;
7) whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future (Foreman at 442E - 442G; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183; Council of the Law Society (NSW) v
[2014] WASAT 137 (S)
A Solicitor [2002] NSWCA 62 (A Solicitor [2002] NSW) at [80]; Chamberlain v Law Society of the Australian Capital Territory (1993) 118 ALR 54 at 62 and 63);
8) the practitioner's disciplinary history (Legal Profession v O'Halloran [2013] WASC 430 at [93]);
9) whether or not the practitioner understands the error of his 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 (Law Society of New South Wales v Walsh [1997] NSWCA 185 per Beazley JJA (Walsh); Legal Profession Complaints Committee v Lashansky [2007] WASC 211 (Lashansky) at [31] - [52] and (second) at [35]; Amsden (S) at [8]; Foreman at 444E; Love at [9]);
10) the desirability of making available to the public any special skills possessed by the practitioner;
11) 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 interest in the honesty and integrity of legal practitioners and in the maintenance of proper standards of legal practice (Love at [59]); and
12) 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 (A Legal Practitioner (S) at [25]). In general, mitigating factors such as no previous misconduct or service to the profession are of considerably less significance than in the criminal process because the jurisdiction is protective not punitive (Walsh).
[2014] WASAT 137 (S)
General matters relating to sanctions
13 Where there is a choice of sanctions, the Tribunal will choose that
sanction which maximises the protection of the public (Quinn v Law
Institute of Victoria [2007] VSCA 122 at [31]).14 The dominant purpose of the disciplinary regulation of the
medical profession is the protection of the public by the maintenance of proper standards within the profession. Hence, the impact which an appropriate penalty would have upon a practitioner guilty of misconduct, and personal hardship to a practitioner, are necessarily secondary considerations (see Legal Profession Complaints Committee v Detata [2012] WASCA 2014 (Detata) at [47] and Legal Profession Complaints Committee v Masten [2011] WASC 71 at [29]; Legal Profession Complaints Committee and Leask [2010] WASAT 133 at [54]).
15 There are circumstances in which a 'global' approach to sanction,
rather than the imposition of separate sanction for each unprofessional act, may be more appropriate in vocational disciplinary proceedings namely, where the facts of the case are so inextricably woven as to make it difficult to meet a clear standard of prescription (A Legal Practitioner (S) at [5]; Stirling v Legal Services Commissioner [2013] VSCA 374 at [72] - [75]). Dr Myers' conduct occurred over a number of days and involved one patient. It is appropriate to impose a penalty having regard to Dr Myers' overall conduct rather than isolating certain incidents and imposing a penalty.
Cancellation of registration
16 The jurisdiction of the Tribunal to cancel a practitioner's registration
is exercised not for the purpose of punishing the practitioner concerned, but for the protection of the public and the reputation and standards of the medical profession: Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 at [43].
17 Where an order for cancellation of a practitioner's registration is
contemplated, the ultimate question is whether the material demonstrates that the practitioner is not a fit and proper person to remain a medical practitioner: A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253 at [15].
18 A practitioner is not a fit and proper person to be a registered
practitioner and should be removed from the register where the unprofessional conduct is so serious that the practitioner is permanently or
[2014] WASAT 137 (S)
indefinitely unfit to practise (Howe (No 2) at [27]; Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 (Darveniza) at [38]; Love at [17] - [18]; A Legal Practitioner (S) at [21] - [25]; Legal Profession Complaints Committee v Brickhill [2013] WASC 369 at [19] - [20] (Thomas JA, McMurdo P and White J agreeing); New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [26] - [28]); Love at [17] - [18]).
19 Although serious dishonesty is an obvious example of where
cancellation of a practitioner's registration is appropriate (Love at [18]), cancellation of registration is not necessarily confined to circumstances involving findings of dishonesty.
Suspension
20 Suspension is a less serious result and differs from cancellation of a
practitioner's registration because suspension is for a specified limited
period.21 The proper use of suspension is in cases where the practitioner has
fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he/she lacks the qualities of character which are the necessary attributes of a person entrusted with the responsibilities of a practitioner (A Legal Practitioner (S) at [26]; Re A Practitioner (1984) 36 SASR 590 at 593 per King CJ). That is, suspension is suitable where the Tribunal is satisfied that, upon completion of the period of suspension, the practitioner will be fit to resume practice (A Legal Practitioner (S) at [27]).
1. Is there a need to protect the public against further misconduct by Dr Myers?
Trust is a fundamental aspect of the relationship between a patient and a medical practitioner.
Medical practitioners are figures of authority within the medical
system.
24 It is often difficult for patients to understand or appreciate who is
responsible for their treatment in a hospital setting. If Dr Myers was not in a position of authority as a medical practitioner in a hospital setting, the patient might have been in a position to tell him to go away.
25 The patient was admitted to the hospital on 13 June 2013. The
circumstances leading to her admission are set out at [29] - [42] of Myers.
[2014] WASAT 137 (S)
26 The purpose of the patient's admission was 'required to afford
[the patient] some solitude away from the factors which had exacerbated her anxiety; to take care of her physical health and allow her ''proper'' sleep so that she might be able, once settled, to deal with and resolve her family problems rationally.'
Dr Myers was aware of the patient's condition (Myers at [88]).
28 Dr Myers chose to invite himself into the patient's room on a number
of occasions when he simply had no reason to enter her room except on
ward rounds.29 At the time of and during the patient's admission to the hospital, the
patient was 'a deeply vulnerable and distressed woman whom Dr Myers indecently assaulted and made sexual remarks to for his own sexual gratification' (Myers at [149]).
30 Dr Myers' conduct and the circumstances in which it occurred are
evidence of a clear need to protect the public against further misconduct
by him.2. Is there a need to protect the public through general deterrence of other practitioners?
31 It is axiomatic that many patients in the hospital system will be in the
hospital system because of injury or ill health, physical and/or mental, that makes them vulnerable to others. Patients are especially vulnerable to the misconduct of medical practitioners.
There is a need for a strong penalty to protect the public from misconduct through general deterrence of other medical practitioners.
3. Is there a need to protect the public by reinforcing high professional standards and denouncing transgressions?
33 Indecent assault and sexual remarks are an anathema to the high
professional standards expected of medical practitioners in order to protect the public. Any penalty must reflect the need to maintain medical practitioners' high professional standards.
Paragraph [89] of Myers states:
Dr Myers was not her treating doctor. If he had cared to inspect the [emergency department notes] and [integrated progress notes], Dr Myers would have known that [the patient] came in with anxiety, depression and suicidal ideation. For Dr Myers to presume that he had any basis upon
[2014] WASAT 137 (S)
which to engage with her, particularly about the sexual relations between
her and her husband, is indefensible.
4. Dishonesty
This factor does not apply.
5. Breach of an Act, Regulations, Guidelines or Code of Conduct
Dr Myers' indecent assault is potentially an offence under s 323 of the Criminal Code.
6. Incompetence
Factor 6 does not apply.
7. Was the incident isolated?
38 The indecent assault by Dr Myers was isolated. However, the
indecent assault occurred in the context of sexual remarks that occurred
over three days.39 Dr Myers' conduct overall, and particularly in relation to the sexual
remarks, was not isolated. Dr Myers' conduct cannot be seen as an isolated lapse of judgment. The patient was alone, and given that Dr Myers had no business in seeing her alone, he must have made a positive decision to enter the room. The reason for Dr Myers' visits to the patient's room was not based on therapeutic reasons (Myers at [92]).
8. Dr Myers' disciplinary history
The respondent's relevant disciplinary record prior to this matter is as summarised in the Board's submissions:
12.1 On 8 November 2001 an Informal Hearing Panel of the Medical Practitioners Board of Victoria made a finding of unprofessional conduct against Dr Myers in relation to Dr Myers' touching a woman's breast. That conduct did not occur in a medical setting.
12.2 On 14 July 2004 the Victorian Civil and Administrative Tribunal (VCAT) found upon review of a decision of the Medical Practitioners Board of Victoria that Dr Myers had engaged in unprofessional conduct in relation to two elderly patients by;
[2014] WASAT 137 (S)
12.2.1 inappropriately imposing on others his personal
views concerning an elderly patient's accommodation and care;
12.2.2 behaving in a manner which was destructive of the relationship between a patient and the patient's family;
12.2.3 acting as a medical practitioner for a patient when the patient was in hospital in circumstances in which he did not have authority to do so;
12.2.4 engaging in inappropriate communications with other persons in relation to a patient;
12.2.5 representing to another medical practitioner that there was adequate care available to a patient enabling the patient to live at home when he knew or ought to have known that this was not the case;
12.2.6 removing a patient from the patient's carers for a purpose other than providing medical care;
12.2.7 acting as a witness to a patient signing a revocation of a power of attorney when he knew or ought to have known that the patient may not have been competent to revoke a power of attorney;
12.2.8 attending at the home of a patient after being refused entry by knocking on windows and calling out the name of the patient and engaging in inappropriate communications with the patient's relatives and using physical force to attempt to gain entry to the home when entry had been denied; and
12.2.9 improperly charging fees to a patient for attending at proceedings when he had not been requested to do so.
Dr Myers was reprimanded, fined a sum of $2,000 and required to undergo a course of counselling in respect of the conduct referred to above; Myers
[2014] WASAT 137 (S)
and Medical Practitioners Board [2004]
VCAT 1358 [215] and [216].
12.3 On 24 August 2012 the VCAT found that Dr Myers had engaged in unprofessional conduct in relation to the treatment of an elderly female patient in that he had failed to obtain her consent for the provision of professional services and had undertaken medico-legal work for the patient without her consent. Dr Myers was reprimanded and an order was made requiring him to undergo counselling. Attached to these submissions is a copy of the Reasons of the VCAT in Medical Board of Victoria and Myers VCAT B1/2011. 12.4 On 31 July 2013 the VCAT found that Dr Myers had engaged in professional misconduct by forming a personal relationship with a patient. In relation to that conduct, on 22 October 2013 the VCAT cancelled Dr Myers' registration and disqualified him from applying for re-registration for a period of 1 year. Attached to these submissions is a copy of the VCAT's Reasons for Decision in Medical Board of Australia v Myers B151/2012 delivered on 31 July 2013 and the relevant decision as to penalty being the Penalty Decision of 22 October 2013. As at the date of these submissions the respondent has not been re-registered as a medical practitioner.
9. Whether or not Dr Myers understands the error of his ways, including an assessment of the any remorse and insight (or a lack thereof) shown by Dr Myers
41 Dr Myers has not shown any remorse. His conduct exhibited a high
degree of self-righteous indignation that the complaint was preferred
against him.42 The practitioner's conduct of the defence and the veracity and
candour of his testimony will often be the best evidence as to whether any mitigating circumstances, including remorse, reform, character change and subsequent good deeds, are to be accepted (A Legal Practitioner (S) at [24]; Barwick v Council of the Law Society of NSW [2004] NSWCA 32 at [108] - [109]).
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43 In New South Wales Bar Association v Maddocks [1988] NSWCA 102, a case concerning a barrister's alleged professional misconduct, Kirby P said that it was more likely that the Court would withhold disbarment or suspension where the practitioner had admitted guilt. His Honour said at [9]:
… This is not simply because such admission may save time and avoid unnecessary controversy. It is because a barrister is more likely to be accepted by judges and fellow practitioners if, despite lapses, he or she acknowledges frankly a recognition of the errors that led to them. Denial which is not accepted, and contest which fails, may reinforce the conclusion of obtuseness or lack of self insight which require action by the Court to protect the public. The community deals with barristers as participants in its institutional arrangements for the administration of justice and the enforcement of the law. That is why very high standards are required by the law and enforced by the Court.
44 Lack of remorse should not, in the absence of aggravating factors, be
the predominate factor leading to a heavy sanction if otherwise a lighter sanction would be applied; Re H (a Barrister) [1981] 1 WLR 1257. Dr Myers had the right to have the allegations made against him tested fully at a hearing about whether the conduct was unprofessional conduct as a legal practitioner.
45 Dr Myers' conduct of the case is stated at [93] - [98] of Myers. In short, in the course of his defence he attempted to establish that the patient was being manipulative which is entirely at odds with all of the objective history (Myers at [95]).
46 Further evidence of Dr Myers' lack of remorse is his attempt to
dissuade the patient, through her son, from continuing with the allegations
(Myers at [102]).47 Dr Myers has not exhibited any sufficient understanding of the
significance and consequences of his misconduct. Therefore, he remains
a risk to the community.10. Are there any special skills possessed of Dr Myers?
Dr Myers does not possess any special skills that would influence any penalty to be imposed.
11. The practitioner's personal circumstances
Dr Myers has not made any submissions and therefore there is no basis for referring to his personal circumstances.
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12. Are there any other matters related to Dr Myers' fitness to practise?
This factor does not apply.
| Conclusion |
Dr Myers' conduct in relation to the patient the subject of the Tribunal's findings is serious of itself.
52 Overall, Dr Myers' actions represent a persistent inability to
recognise the appropriate boundaries between a medical practitioner and a
patient.
Dr Myers' pattern of boundary violations dates back to 2004.
Dr Myers has failed to be deterred by a caution, counselling or a fine.
Dr Myers' conduct in this matter as compared to his previous disciplinary record shows an escalating pattern of conduct on his part.
Dr Myers poses too great a risk to the public to be able to practise
any longer.
57 Dr Myers is permanently or indefinitely unfit to practise. He is not a
fit and proper person to be a registered medical practitioner. Given Dr Myers' disciplinary record and the seriousness of his conduct, the Tribunal is satisfied that suspension is not an appropriate penalty.
58 The appropriateness of a fine is affected by the seriousness of the
conduct. In circumstances where a medical practitioner has indecently assaulted a patient and made sexual comments a penalty beyond being disqualified from applying for registration is appropriate. A substantial fine is required to reflect the seriousness of Dr Myers' conduct. We fix the fine at $10,000.
59 Dr Myers does not hold registration under the National Law. The
appropriate disciplinary order, under s 196(4) of the National Law, is that he be disqualified from applying for re-registration as a registered health practitioner for a period of five years.
In addition, Dr Myers is fined $10,000 under s 196(2)(c) of the
National Law.
61 Dr Myers is to pay the Board's costs and disbursements at the scale
provided for as if the proceedings had been in the Supreme Court of
Western Australia.
[2014] WASAT 137 (S)
Orders
1. Pursuant to s 196(2)(c) of the Health Practitioner Regulation National Law (WA) Act 2010, Dr John Barry Myers is fined in the sum of $10,000;
2. Pursuant to s 196(4)(a) of the Health Practitioner Regulation National Law (WA) Act 2010, Dr John Barry Myers is disqualified from applying for re-registration as a registered health practitioner for a period of five years; and
3. Dr John Barry Myers is to pay the Medical Board of Australia's costs and disbursements at the scale provided for as if the proceedings had been in the Supreme Court of Western Australia.
I certify that this and the preceding [61] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J C CURTHOYS, PRESIDENT
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