MEDICAL BOARD OF AUSTRALIA and OGUNDIPE

[2019] WASAT 32

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010

CITATION:   MEDICAL BOARD OF AUSTRALIA and OGUNDIPE [2019] WASAT 32

MEMBER:   JUDGE T SHARP, PRESIDENT (ACTING)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   27 MAY 2019

FILE NO/S:   VR 91 of 2018

BETWEEN:   MEDICAL BOARD OF AUSTRALIA

Applicant

AND

JAMES AYODELE OGUNDIPE

Respondent

Catchwords:

Non­publication order - Medical practitioner - Disciplinary proceedings - Professional misconduct - Penalty - Suspension from practice

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010, s 5, s 31, s 196, s 196(2)(a), s 196(2)(d)
State Administrative Tribunal Act 2004 (WA), s 61(4), s 61(4)(d), s 62(3)

Result:

The application for a non­publication order is refused

Category:    B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	Moray & Agnew Lawyers
Respondent	:	Panetta McGrath Lawyers

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

Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151

REASONS FOR DECISION OF THE TRIBUNAL:

Background

1. The applicant (Board) is established under s 31 of the Health Practitioner Regulation National Law (WA) (National Law) which is set out in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010.

2. The respondent (Respondent) is, and was at all times in October 2016 a registered medical practitioner with specialist registration in general practice pursuant to the National Law.

3. The Board in an application dated 28 May 2018 and filed with the Tribunal on the same date alleged that there is proper cause for disciplinary action against the Respondent under s 196 of the National Law.

4. The matter was referred to a mediation conference on 1 October 2018 which resulted in the parties agreeing and filing proposed orders to settle the proceedings.

5. Final orders were made by the Tribunal on 10 October 2018 (Tribunal's Final Orders) in accordance with the proposed orders.

6. The Tribunal's Final Orders contained a statement of agreed facts and the Tribunal made these findings of fact (amended where necessary only to avoid identifying the relevant patient):

   1.The [Board] is established pursuant to section 31 of the [National Law] and has the functions provided in section 35 of the National Law, including the referral of matters involving registered health practitioners to tribunals in participating jurisdictions.

   2.The Respondent is, and was at all times in October 2016 (material time), a registered medical practitioner with specialist registration in general practice pursuant to the National Law.

   3.The Patient had been a patient of the Respondent at his medical practice in [Perth suburb] since 4 June 2009 to October 2016 (treating period).

   4.The Respondent treated the Patient for general health conditions, depression, anxiety and abuse of amphetamines and other drugs of addiction.

   5.The Patient suffered a relapse of her drug addiction in November 2015 and again in October 2016.

   6.On 26 October 2016 the Respondent attended on the Patient at the Patient's home after 7:30 pm.

   7.The Patient had consumed methamphetamine and Seroquel on 26 October 2016.

   8.The Respondent engaged in sexual intercourse with the Patient at the Patient's home on 26 October 2016.

   9.The Respondent admitted on 15 November 2016 the inappropriate sexual contact with the Patient.

   10.The Respondent, by his conduct in paragraph 8, has breached:

   (a)the [Board's] 'Good Medical Practice; a Code of Conduct for Doctors in Australia' (Code of Conduct); and

   (b)the [Board's] 'Sexual Boundaries: Guidelines for Doctors' (Guidelines).

   11.The Respondent encouraged the Patient to attend a church, (Church), and to participate in various activities of the Church, and invited the Patient to a pantomime performed at the Church, for which he provided her with a ticket.

   12.In the period 10 March 2016 to 21 October 2016 the Respondent sent 11 text messages to the Patient that were not related to medical treatment.

   13.In the period 10 March 2016 to 21 October 2016, the Respondent received 26 text messages from the Patient that were not related to medical treatment.

   14.During the course of consultations in and around 2015 and 2016, the Respondent:

   (a)hugged the Patient;

   (b)told the Patient that:

   (i)she was like one of his children;

   (ii)he cared for her as one of his children; and

   (iii)she was special.

   15.The Respondent formed a relationship with the Patient during the course of the treating period which was inappropriate in the context of, alternatively, not consistent with, a doctor/patient relationship.

   16.The Practitioner (sic) ought to have communicated to the Patient:

   (a)the professional boundaries that apply to a doctor/patient relationship; and

   (b)the limits to the medical care he was able to provide to the Patient.

   17.The Respondent failed to maintain professional boundaries and acted contrary to the Code of Conduct.

   19.The Respondent ought to have:

   (a)referred the Patient to another practitioner for her ongoing general care;

   (b)referred the Patient to a drug rehabilitation specialist or service provider, or to a hospital in respect of her relapse in drug addiction; and

   (c)terminated the doctor/patient relationship.

   19.The Respondent failed to take any of the above steps.

   20.The Respondent attended on the Patient at her home without a request from the Patient that he do so:

   (a)on 18 October 2016, at about 7:00 pm and stayed for about an hour;

   (b)on 25 October 2016, at 7:30 am but was unable to access the home; and

   (c)on 26 October 2016, at 7:30 pm and left at about 8:30 pm.

   21.The Respondent did not document any of the above home visits in the Patient's medical notes.

   22.On or about 21 October 2016 the Respondent prescribed Seroquel to the Patient.

   23.The Respondent left the prescription for this medication with the Patient's neighbour (Neighbour).

   24.The Respondent provided the Neighbour with money for payment of the prescription and instructions on dispensing the medication to the Patient.

   25.The Neighbour was a recovering addict.

   26.The Neighbour was not responsible for the Patient's welfare.

   27.It was not appropriate for the Respondent to provide the Patient's prescription to the Neighbour by reason of the matters in paragraph [sic] 25 and 26.

   28.On or about 21 October 2016 the Respondent attended on the Patient and administered an injection of chlorpromazine to the Patient.

   Factors in Mitigation

   (A)The Respondent has never been the subject of any complaint of a similar nature and had until this application an unblemished disciplinary record in Australia.

   (B)The Respondent admitted the inappropriate sexual contact with the Patient, and expressed his profound remorse and shame in relation to that conduct early in the course of the investigation into the conduct.

   (C)The Respondent is contrite and accepts responsibility for the admitted conduct.

   (D)The Respondent sought professional medical assistance in addressing his conduct and has established and continued a therapeutic relationship with a consultant psychiatrist.  The Respondent is fully compliant with all management and treatment recommendations and continues to see the consultant psychiatrist on a regular basis.

   (E)The Respondent's treating psychiatrist diagnosed the Respondent as suffering from a psychiatric condition in the form of major depressive disorder and anxiety disorder at the time of the admitted conduct.

7. The Respondent has admitted that he behaved in a way that constitutes professional misconduct as defined by s 5 of the National Law and by reason of that admission, and to give effect to the agreed terms of settlement, the Tribunal made that finding in the Tribunal's Final Orders.

8. The Tribunal with the consent of the parties ordered in the Tribunal's Final Orders that the Respondent is reprimanded pursuant to s 196(2)(a) of the National Law and, pursuant to s 196(2)(d) of the National Law, suspended the Respondent from practice as a registered medical practitioner for a period of 15 months, such suspension taking effect from 1 November 2018.

9. The Respondent, also with the consent of the parties, was further ordered in the Tribunal's Final Orders to pay a contribution to the Board's legal costs in the sum of $7,000.

The application for a non­publication order

1. Before the Tribunal's Final Orders were published, the Respondent through its solicitors by email on 31 October 2018 indicated that the Respondent intended 'to make an application for a non­publication order'.  That application (Non­Publication Application) was filed with the Tribunal on 13 November 2018.

2. The Non­Publication Application seeks 'Orders pursuant to s 62(3) and s 61(4)(d) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) that the Respondent's identity in this matter is not to be disclosed, distributed or published in any way'.

3. The grounds for that requested order are set out in the Non­Publication Application as follows:

   The ground on which the orders are sought is that the orders are necessary to avoid endangering the mental health or safety of a person and/or persons, being the respondent and his wife … for the purposes of s 61(4)(d) of the SAT Act.

Legislative scheme

1. Section 62(3) of the SAT Act relevantly provides:

   On the application of a party or on its own initiative the Tribunal may, in the circumstances described in section 61(4), order that anything, or any particular thing, to which this section applies is not to be published except in the manner and to the persons, if any, specified by the Tribunal.

2. Section 61(4) of the SAT Act sets out the circumstances referred to in s 62(3) of the SAT Act, which must be satisfied before the Tribunal makes a non­publication order. Section 61(4) of the SAT Act provides:

   The Tribunal may make an order under subsection (2) if the Tribunal considers it is necessary to do so ­

   (a)to avoid endangering the national or international security of Western Australia or Australia; or

   (b)to avoid damaging inter­governmental relations; or

   (c)to avoid prejudicing the administration of justice; or

   (d)to avoid endangering the physical or mental health or safety of any person; or

   (e)to avoid offending public decency or morality; or

   (f)to avoid endangering property; or

   (g)to avoid the publication of confidential information or information the publication of which would be contrary to the public interest; or

   (h)for any other reason in the interests of justice.

Relevant considerations

1. The factors relevant to the exercise of the Tribunal's discretion to make an order under s 62(3) of the SAT Act were set out by the Court of Appeal in Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151 at [86] ­ [88]. They can be summarised as follows:

   1.The Tribunal has been given an express power to prohibit publication of the matters specified in s 62 of the SAT Act in the circumstances specified in s 61(4).

   2.There are material differences of some significance between 'open justice principles' applied in common law courts, and the rights and obligations conferred on the Tribunal by the SAT Act.

   3.These differences reinforce the observation that when an issue arises as to whether a non­publication order ought to be made, and if so, its scope, the question is to be resolved by directing attention to the relevant provisions of the SAT Act rather than by emphasis upon the common law principles of open justice which have evolved in relation to courts.

   4.This does not mean that an expansive view should be taken of the powers conferred by the SAT Act to supress publication of certain material. On the contrary, the language of the SAT Act compels the conclusion that it was intended that orders would only be made under those sections if necessary to avoid the particular consequences specified in s 61(4)(a) ­ (g) or in the interests of justice through s 61(4)(h).

   5.The requirement that the order be 'necessary' reinforces that there must be a real and substantial connection between the publication of material and the relevant adverse consequence specified in the section.

   6.A remote possibility of harm arising from an indirect or tenuous connection between a failure to make a suppression order will not satisfy the statutory requirement that the order be 'necessary'.

   7.The particular consequences specified in s 61(4)(a) ­ (g) apply only to consequences of a significant or material kind, and not to consequences which are minor in character, transient or ephemeral.

The basis of the application

Respondent's submissions

1. As I have already said, the stated basis upon which the Non­Publication Application was made is 'to avoid endangering the mental health or safety of a person and/or persons, being the Respondent and his wife …'.

2. On 29 January 2019, the Respondent filed submissions in support of the Non­Publication Application.  The Respondent also filed a sworn affidavit on 13 November 2018.

3. The Respondent says that the Non­Publication Application is supported by psychiatric medical evidence from Professor Skerritt, the Respondent's psychiatrist and Dr Chester, the Respondent's wife's psychiatrist.  The Respondent says that there is a real and substantial risk that publication of the Respondent's identity in the Tribunal's Final Orders will cause damage of some reasonably significant kind to the mental health of the Respondent and/or the Respondent's wife.

4. The Respondent says that the Tribunal's responsibility is to balance the competing risks of deterrence and/or transparency, in the context of endangering the Respondent's and or his wife's mental health.

5. The Respondent says that the public interest relating to deterrence would be adequately served without identifying the Respondent. 

Board's submissions

1. The Board on 29 January 2019 filed submissions in opposition to the Respondent's Non­Publication Application.

2. The Board says that the Respondent's conduct:

   a)represents a substantial departure from the professional standards expected of general practitioners by the profession and by the public;

   b)violates the trust that is key to any doctor/patient relationship; and

   c)undermines the confidence that any member of the public has in the profession.

3. The Board says that publication of the Tribunal's findings and orders is necessary to:

   a)restore confidence in the profession;

   b)maintain professional standards;

   c)act as a deterrent to members of the profession; and

   d)serve the interests of justice by holding members of the profession accountable in an open and transparent way.

4. The Board submits that any humiliation, embarrassment or shame to the Respondent and members of his family are the unfortunate and inevitable consequences of his misconduct.

5. The Board reminds the Tribunal that some time has passed since the Respondent's conduct was first reported and that the events which Professor Skerritt identifies as being stressors which undermine the Respondent's improving mental health, being the pending proceedings and then the mediation, have now taken place.  The Board says that by making the Tribunal's Final Orders, the proceedings and therefore the stressors associated with it have come to an end.

6. The Board also says that the Respondent's conduct is known by some in his community.

7. The Board says that the public interest in knowing the identity of the Respondent who has been found to have engaged in professional misconduct, and in maintaining high professional standards, deterring similar conduct and in restoring and maintaining the confidence of the public in the profession overrides the interest of the Respondent in preserving his anonymity so as to avoid further embarrassment and shame to himself and to his family arising from his professional misconduct.

The medical reports

The Respondent

1. The Tribunal has received and considered reports about the Respondent from Professor Skerritt dated respectively 1 August 2017, 23 June 2018, 18 September 2018, 7 February 2019 and 12 February 2019.

2. Professor Skerritt's report of 1 August 2017 deals with the Respondent's health issues at the time of and leading up to the offending.  He says that the Respondent has responded well to medication and he 'was very pleased with his progress'.  The report does not touch on any concerns which he may have had about the publication of the Respondent's name in any findings made by the Tribunal.

3. In Professor Skerritt's 'follow up report' dated 23 June 2018, Professor Skerritt reports that the symptoms which were the target for treatment 'are in remission'.  Again, this report pre­dates the settlement of the matter.

4. Professor Skerritt says in that report that he considers that the Respondent is 'a fit person to practise now and in the future'.

5. Professor Skerritt's report of 18 September 2018 appears to have been provided in contemplation of settlement being reached.  It pre­dates by some 12 days the date of the mediation following which the terms of settlement were agreed.  Professor Skerritt offers the opinion that he considers that it would be 'potentially harmful' to the Respondent's mental health if his name were to be released.

6. Professor Skerritt then provided two later reports, dated 7 and 12 February 2019 respectively.  These reports expressly focus on the issue of whether or not the publication of the Respondent's name in the Tribunal's Final Orders, would endanger the Respondent's physical or mental health.  Professor Skerritt says that the publication of the Respondent's name 'would find him in a position that is not only vulnerable but actually symptomatic and would carry a serious question of worsening of the condition which has been present throughout the whole sad history and at present in a state of exacerbation'; Professor Skerritt's report of 7 February 2019 at para 4.

7. Professor Skerritt's report of 12 February 2019 was given in response to a request from the Respondent for further particulars in respect of his statement which I quoted in the preceding paragraph.  Professor Skerritt explained that 'the risk of suicide will be increased by stressful circumstances and that release of his name would be one such stressor'.

The Respondent's wife

1. The Tribunal also has before it a report from Dr Chester dated 1 November 2018. 

2. It is unnecessary to include in these reasons any details from that report.  The report covers the Respondent's wife's state of health during the period following the original complaint to the Board in 2016 which led to the Board's application to the Tribunal in 2018.  While the Respondent's wife has undoubtedly been affected by these proceedings, there is nothing in the report to suggest that a non­publication order is necessary to avoid endangering her mental or physical health or safety in any significant or material way.

Disposition

1. The Respondent, and to some extent the Board, suggests that the decision to make an order under s 62(3) of the SAT Act requires the Tribunal to find a balance between on the one hand the need in the public interest for publication of the Respondent's name and, on the other hand, the effect on the health and safety of the Respondent or others in so doing.

2. I disagree. The circumstances under which an order can be made under s 62(3) are set out in s 61(4), which does not include any need to take into account any principles of public interest. No matter how compelling the public interest may be in the publication of the name of the Respondent, the Tribunal's only consideration when deciding to make an order under s 62(3) is whether it is necessary to do so to avoid endangering the physical or mental health of the Respondent, his wife or both of them.

1. The Tribunal accepts that the publication of the Respondent's name may cause humiliation, embarrassment and shame to the Respondent and members of his family.  However, I am not persuaded that it is necessary to make an order to not publish the Respondent's name so as to avoid endangering his or his family's physical or mental health or safety.  I understand from Professor Skerritt's evidence that the Respondent is responding well to treatment and I am not satisfied that, if I do not make a non­publication order, there is a real or significant risk to the Respondent's health and safety.

2. On the evidence before me, I have already reached the same conclusion at [36] with regard to the health and safety of the Respondent's wife.

3. The Tribunal is not satisfied that it is necessary to suppress the publication of the Respondent's name in order to avoid endangering the physical or mental health or safety of any person.

Orders

The Tribunal orders that:

1.The respondent's application under s 62(3) of the State Administrative Tribunal Act 2004 (WA) is refused.

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

JUDGE T SHARP, PRESIDENT (ACTING)

27 MAY 2019