MEDICAL BOARD OF AUSTRALIA and VEETTILL
[2015] WASAT 124 (S)
•23 FEBRUARY 2016
MEDICAL BOARD OF AUSTRALIA and VEETTILL [2015] WASAT 124 (S)
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 124 (S) | |
| HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 | |||
| Case No: | VR:66/2015 | 19 FEBRUARY 2016 | |
| Coram: | JUSTICE J C CURTHOYS (PRESIDENT) MS C WALLACE (MEMBER) DR K JEFFERIES (SENIOR SESSIONAL MEMBER) | 23/02/16 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Respondent reprimanded Respondent suspended as a registered health practitioner for a period of 12 months Conditions imposed following resumption of practice for a period of 12 months 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 | ||
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| PDF Version |
| Parties: | MEDICAL BOARD OF AUSTRALIA PREMANANDAN VAYAL VEETTILL |
Catchwords: | Medical practitioner National Law Sexual misconduct Crossing of professional boundaries Unsatisfactory professional performance Professional misconduct Improper access to patient's records Unsatisfactory professional performance Penalty Suspension of registration Imposition of conditions |
Legislation: | Health Practitioner Regulation National Law (WA) Act 2010, Schedule, s 3, s 4, s 192, s 196 |
Case References: | A Legal Practitioner (S) at [24]; Barwick v Council of the Law Society of NSW [2004] NSWCA 32 A Solicitor v Council of the Law Society of NSW [2004] HCA l; (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 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 O'Halloran [2013] WASC 430 Legal Profession Complaints Committee v Segler [2014] WASC 159 Medical Board of Australia and Myers [2014] WASAT 137 (S) Medical Board of Australia and Veettill [2015] WASAT 124 New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 New South Wales Bar Association v Evatt (1968) 117 CLR 177 New South Wales Bar Association v Hamman [1999] NSWCA 404 New South Wales Bar Association v Maddocks [1988] NSWCA 102 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 Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 159 |
Orders | 1. Dr Premanandan Vayal Veettill is reprimanded.,2. Pursuant to s 192(d) of the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010, Dr Premanandan Vayal Veettill's registration is suspended for a period of 12 months from 1 March 2016.,3. Pursuant to s 196(2)(b) of the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010, Dr Premanandan Vayal Veettill's registration from 1 March 2017 to 1 March 2018 is subject to the following conditions:,(a) Dr Veettill will not contact or meet with female patients outside of a clinical setting;,(b) Dr Veettill may only practise within a hospital or private consulting rooms;,(c) Dr Veettill:,will not consult with, or treat, any female patients without an adult female chaperone, who is acceptable to the patient, present throughout the consultation or treatment; and,(ii) must complete a log sheet for female patients consulted or treated in the form of the chaperone log provided by the Medical Board of Australia, which is to be countersigned by the chaperone in attendance, and submitted to the Medical Board of Australia on a fortnightly basis, other than when completing his clinical examinations at the Royal Australian College of Physicians.,(d) Dr Veettill:,must inform the Australian Health Practitioner Regulation Agency of all of his employers and places of practice and any changes to such on an ongoing basis;,consents to the Australian Health Practitioner Regulation Agency providing all of his employers and places of practice with a copy of the conditions on his registration; and,(iii) consents to his employer(s) reporting to the Australian Health Practitioner Regulation Agency on his professional performance.,4. Dr Premanandan Vayal Veettill 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, to be assessed if not agreed. |
Summary | On 6 November 2015, the Tribunal found Dr Premanandan Vayal Veettill, a medical practitioner, guilty of unsatisfactory professional performance and professional misconduct for the purposes of s 196(1)(b) of the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010(National Law).,Following notification of the complaint by the patient on 18 June 2014, the Medical Board of Australia imposed conditions on Dr Veettill's registration and as a consequence of those conditions, Dr Veettill ceased practising in a clinical role.,The Tribunal considered the appropriate sanction and penalties pursuant to s 196(2), s 196(3) and s 196(4) of the National Law. ,The Tribunal determined that it was appropriate to impose a global penalty having regard to Dr Veettill's overall conduct which occurred over two groups of days and involved one patient. ,Although Dr Veettill had fallen below the high standards to be expected of a medical practitioner, the Tribunal was satisfied that he had not done in such a way as to indicate that he lacked the qualities of character which are the necessary attributes of a person entrusted with the responsibilities of a practitioner. The Tribunal was therefore satisfied that, upon completion of a period of suspension of 12 months, Dr Veettill would be fit to resume practice.,The Tribunal determined that the conditions imposed on Dr Veettill's registration on 18 June 2014 should be applied for a further period of 12 months of practice after the suspension period ends.,Dr Veettill was ordered 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. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 CITATION : MEDICAL BOARD OF AUSTRALIA and VEETTILL [2015] WASAT 124 (S) MEMBER : JUSTICE J C CURTHOYS (PRESIDENT)
- MS C WALLACE (MEMBER)
DR K JEFFERIES (SENIOR SESSIONAL MEMBER)
- Applicant
AND
PREMANANDAN VAYAL VEETTILL
Respondent
Catchwords:
Medical practitioner - National Law - Sexual misconduct - Crossing of professional boundaries - Unsatisfactory professional performance - Professional misconduct - Improper access to patient's records - Unsatisfactory professional performance - Penalty - Suspension of registration - Imposition of conditions
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010, Schedule, s 3, s 4, s 192, s 196
Result:
Respondent reprimanded
Respondent suspended as a registered health practitioner for a period of 12 months
Conditions imposed following resumption of practice for a period of 12 months
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 6 November 2015, the Tribunal found Dr Premanandan Vayal Veettill, a medical practitioner, guilty of unsatisfactory professional performance and professional misconduct for the purposes of s 196(1)(b) of the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010(National Law).
Following notification of the complaint by the patient on 18 June 2014, the Medical Board of Australia imposed conditions on Dr Veettill's registration and as a consequence of those conditions, Dr Veettill ceased practising in a clinical role.
The Tribunal considered the appropriate sanction and penalties pursuant to s 196(2), s 196(3) and s 196(4) of the National Law.
The Tribunal determined that it was appropriate to impose a global penalty having regard to Dr Veettill's overall conduct which occurred over two groups of days and involved one patient.
Although Dr Veettill had fallen below the high standards to be expected of a medical practitioner, the Tribunal was satisfied that he had not done in such a way as to indicate that he lacked the qualities of character which are the necessary attributes of a person entrusted with the responsibilities of a practitioner. The Tribunal was therefore satisfied that, upon completion of a period of suspension of 12 months, Dr Veettill would be fit to resume practice.
The Tribunal determined that the conditions imposed on Dr Veettill's registration on 18 June 2014 should be applied for a further period of 12 months of practice after the suspension period ends.
Dr Veettill was ordered 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.
Category: B
Representation:
Counsel:
Applicant : Mr J Prior
Respondent : Mr P Yovich SC
Solicitors:
Applicant : Moray and Agnew
Respondent : Panetta McGrath Lawyers
Case(s) referred to in decision(s):
A Legal Practitioner (S) at [24]; Barwick v Council of the Law Society of NSW [2004] NSWCA 32
A Solicitor v Council of the Law Society of NSW [2004] HCA l; (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
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 O'Halloran [2013] WASC 430
Legal Profession Complaints Committee v Segler [2014] WASC 159
Medical Board of Australia and Myers [2014] WASAT 137 (S)
Medical Board of Australia and Veettill [2015] WASAT 124
New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279
New South Wales Bar Association v Evatt (1968) 117 CLR 177
New South Wales Bar Association v Hamman [1999] NSWCA 404
New South Wales Bar Association v Maddocks [1988] NSWCA 102
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
Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 159
Introduction
1 On 6 November 2015, following a hearing over two days, the Tribunal found Dr Premanandan Vayal Veettill, a medical practitioner, guilty of unsatisfactory professional performance and professional misconduct for the purposes of s 196(1)(b) of the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (National Law) - see Medical Board of Australia and Veettill [2015] WASAT 124 (Veettill).
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 practitioner's conduct
3 The Tribunal determined that:
(a) Dr Veettill was guilty of unsatisfactory professional performance in that Dr Veettill breached professional boundaries when between 11 March 2013 and 30 May 2014 he:
(i) telephoned the Patient on a number of occasions;
(ii) attended the Patient's home on four occasions exclusive of 30 May 2014;
and that on 30 May 2014, Dr Veettill:
(iii) telephoned the Patient and stated that he had some test results to give her from RPH;
(iv) met the Patient at a coffee shop in West Perth;
(v) told the Patient he wanted to refer her to a sleep clinic;
(vi) asked to see the Patient that evening; and
(vii) arranged to, and subsequently visited, the Patient at her home that evening.
(b) The Tribunal also found that Dr Veettill was guilty of professional misconduct in that, at the Patient's home on 30 May 2014:
(i) Dr Veettill and the Patient discussed the Patient's health issues and other unrelated matters;
(ii) the Patient informed Dr Veettill that she had pain in her heart and chest;
(iii) Dr Veettill:
• said words to the effect of 'Let's have a look';
• asked the Patient to lie on the floor; and
• asked the Patient to remove her top and bra;
(iv) the Patient removed her top and bra and laid down on the floor on her back;
(v) Dr Veettill:
• laid down next to the Patient;
• moved the Patient's left arm above her head;
• examined the Patient's left breast; told the Patient the examination was normal;
• put his left ear to the Patient's chest, in between her breasts, and told the Patient he was trying to hear her heartbeat;
• fondled and groped the Patient's breasts with his hands; and
• kissed the Patient's breasts and nipples;
(vi) the Patient stated 'No, no, no';
(vii) Dr Veettill stood and stated words to the effect of 'Come and sit in the chair', to which the Patient stated 'No';
(viii) Dr Veettill:
• pulled the Patient over to a chair;
• sat the Patient on his lap; and
• groped the Patient's breasts and torso;
(ix) the Patient repeatedly stated words to the effect of 'No' and 'What are you doing?'; and
(x) Dr Veettill stopped and the Patient asked him to leave.
4 In its submissions filed 24 November 2015, the Medical Board of Australia (the Board) sought the following orders:
13.1 [Dr Veettill's] registration be cancelled;
13.2 [Dr Veettill] be disqualified from applying for registration for a period of two years;
13.3 [Dr Veettill] be reprimanded; and
13.4 [Dr Veettill] pay the [Board's] costs to be assessed at the Supreme Court scale, alternatively, the Tribunal's scale of costs.
5 In his submissions filed on 15 December 2015, Dr Veettill sought orders that a suspension with conditions be imposed. He accepted that an order that he pay the Board's costs was appropriate.
Legal framework and principles
6 Section 3 of the National Law sets out the objectives and guiding principles. Relevantly they are s 3(l)(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[.]
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.
8 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 (l)(b), the tribunal may decide to do one or more of the following -
(a) caution or reprimand the practitioner;
(b) impose a condition on the practitioner's registration, including, for example -
(i) a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or
(ii) a condition requiring the practitioner to undertake a specified period of supervised practice; or
(iii) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or
(iv) a condition requiring the practitioner to manage the practitioner's practice in a specified way; or
(v) a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or
(vi) a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;
(c) require the practitioner to pay a fine of not more than $30 000 to the National Board that registers the practitioner;
(d) suspend the practitioner's registration for a specified period;
(e) cancel the practitioner's registration.
(3) If the responsible tribunal decides to impose a condition on the practitioner's registration, the tribunal must also decide a review period for the condition.
(4) If the tribunal decides to cancel a person's registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to -
(a) disqualify the person from applying for registration as a registered health practitioner for a specified period; or
(b) prohibit the person from using a specified title or providing a specified health service.
9 The Tribunal repeats what it stated in Medical Board of Australia and Myers [2014] WASAT 137 (S). 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 440G441A - B; Legal Profession Complaints Committee and in de Braekt [2013] WASAT 124 at [24]-[26]; New South Wales Bar Association v Hamman [1999] NSWCA 404 (Hamman) at [21] and [77]).
10 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 l; (2004) 216 CLR 253 (A Solicitor[2004] NSW) at [15]; Love at [16]).
11 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; ASolicitor [2004] NSW).
12 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
13 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 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 [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 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 Complaints Committee 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]);
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]; New South Wales Bar Association v Maddocks [1988] NSWCA 102).
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.
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).
General matters relating to sanctions
14 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]).
15 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]).
16 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]).
17 Dr Veettill's conduct occurred over a number of days and involved one patient. It is appropriate to impose a global penalty having regard to Dr Veettill's overall conduct rather than isolating certain incidents and imposing separate penalties.
Cancellation of registration
18 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].
19 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[2004] NSW at [15].
20 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 indefinitely unfit to practise (Veterinary Surgeons Investigating Committee v Howe(No2) [2003] NSWADT 159at [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]).
Suspension
21 Suspension is a less serious result and differs from cancellation of a practitioner's registration because suspension is for a specified limited period.
22 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]).
Dr Veettill's personal history
23 Dr Veettill graduated with a Bachelor of Medicine and Surgery from the University of Calicut, India in 1989 and received his Masters degree in general medicine from the same institution in 2004.
24 After he graduated in 1989, Dr Veettill worked as a general medical practitioner whilst studying to specialise in adult internal medicine.
25 In 2006, Dr Veettill and his family migrated to Australia on a 457 visa, and he practised in Melbourne for 2½ years until he moved to Perth in 2009. He then worked at Royal Perth Hospital (RPH) for six years and with the Australian Locum Medical Service in 2012-2013, during which he attended over 5,000 home visits.
26 Dr Veettill became a member of the Royal Australian College of Physicians (RACP) as an Adult Medicine Basic Trainee. Dr Veettill completed all the requisite certified training time (36 months) and was studying for his written and clinical examinations at the time of the conduct.
27 Dr Veettill passed the RACP's written examination in March 2014 and was due to take his final clinical examinations in August 2014 in order to complete that training. As a result of the notification that led to this matter, he was unable to complete the examinations, and he is unlikely to be able to do so for the foreseeable future.
28 The notification was made by the Patient on 10 June 2014 and conditions were imposed upon Dr Veettill's registration on 18 June 2014. Those conditions were:
1. [Dr Veettill] is not to contact the patient involved in the notification at any time by any means.
2. [Dr Veettill] will not contact or meet with female patients outside of a clinical setting.
3. [Dr Veettill] may only practise within a hospital or private consulting rooms.
4. [Dr Veettill]:
a. will not consult with, or treat, any female patients without an adult female chaperone, who is acceptable to the patient, present throughout the consultation or treatment; and
b. must complete a log sheet for female patients consulted or treated in the form of the chaperone log provided by the Medical Board of Australia (the Board), which is to be countersigned by the chaperone in attendance, and submitted to the Board on a fortnightly basis, other than when completing his FRACP clinical examinations.
5. [Dr Veettill]:
a. must inform AHPRA of all of his employers and places of practice and any changes to such on an ongoing basis;
b. consents to AHPRA providing all of his employers and places of practice with a copy of the conditions of his registration; and
c. consents to his employer(s) reporting to AHPRA on his professional performance.
6. All costs associated with the conditions will be borne by [Dr Veettill].
29 Due to the imposition of conditions upon Dr Veettill's registration, Dr Veettill had to be redeployed by RPH to work on clinical projects. RPH advised that the cost of employing a nurse chaperone (which would be required if Dr Veettill was to continue in his clinical role) was prohibitive and that therefore Dr Veettill needed to be employed in a role which did not involve patient contact.
30 Dr Veettill was not allowed to undertake any clinical practice for in excess of seven months which will prevent him from applying for the RACP clinical examinations.
31 Dr Veettill practised medicine for approximately 25 years until June 2014, when the notification of these matters led to his ceasing to practise.
32 As a consequence of the conditions on his registration, Dr Veettill's employment contract with RPH which had been renewed annually for the last six years, was not renewed with RPH.
1). Is there a need to protect the public against further misconduct by Dr Veettill?
33 Trust is a fundamental aspect of the relationship between a patient and a medical practitioner. That trust is particularly important when a medical practitioner visits a patient at his or her home.
34 Dr Veettill's conduct and the circumstances in which it occurred are evidence of a 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?
35 There is a need for a strong penalty to protect the public from misconduct through general deterrence of other medical practitioners, particularly in the case of medical practitioners visiting a patient at his or her home, and particularly in the case of locums.
36 Locums often visit patients after hours. Generally, if a patient calls a locum after hours, it is because his or her regular doctor is unavailable and he or she is in distress.
37 Patients are often more vulnerable in their own home particularly if they live alone.
38 The public must feel sufficiently confident to call locum services after hours otherwise they may be exposed to unnecessary pain or distress or deterioration of their health if they wait until business hours.
3) Is there a need to protect the public by reinforcing high professional standards and denouncing transgressions?
39 Sexual assault is 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.
40 The maintenance of professional boundaries is particularly important in this case. Had Dr Veettill not breached those boundaries by telephoning the patient and subsequently meeting her for a coffee and visiting her home, it is hard to imagine that the assault of 30 May 2014 would ever have occurred.
4) Dishonesty
41 This factor does not apply.
5) Breach of an Act, Regulations, Guidelines or Code of Conduct
42 Dr Veettill's sexual assault is potentially an offence under s 323 of the Criminal Code.
43 Dr Veettill has breached s 8.2 of the Good Medical Practice: A Code for Conduct for Doctors in Australia (July 2010 and 17 March 2014) and Sexual Boundaries: Guidelines for Doctors (28 October 2011), both of which were developed and approved by the Board for reference by the profession.
6) Incompetence
44 Factor 6 does not apply.
7) Was the incident isolated?
45 The incident of professional misconduct was isolated. The other conduct stretched over two separate time periods.
8) Dr Veettill's disciplinary history
46 There have been no previous adverse findings made against Dr Veettill. Therefore, prior to the conduct which resulted in the adverse finding by the Tribunal in this proceeding, he had practised medicine with a completely unblemished disciplinary record for approximately 24 years, eight of them in Australia.
9) Whether or not Dr Veettill understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by Dr Veettill
47 Dr Veettill had the right to have the allegations made against him tested fully at a hearing about whether the conduct was unprofessional conduct as a medical practitioner.
48 It is of concern that Dr Veettill lacks insight into his conduct, however, this is a matter to be considered in the light of all other matters.
10) Are there any special skills possessed of Dr Veettill?
49 Dr Veettill does not possess any special skills that would influence any penalty to be imposed.
11) The practitioner's personal circumstances
50 At the time of the conduct, Dr Veettill had two jobs and was studying for examinations which are extremely difficult. It is a reasonable inference that he was under significant stress. While the practitioner's conduct is not directly relevant to the protection of the public, it is relevant to whether the conduct is likely to be repeated. Having regard to Dr Veettill's previous history, the Tribunal is satisfied that if Dr Veettill does not again place himself in stressful circumstances, it is far less likely that the conduct would be repeated.
12) Are there any other matters related to Dr Veettill's fitness to practise?
51 This factor does not apply.
Conclusion
52 The Tribunal is satisfied that although Dr Veettill has fallen below the high standards to be expected of such a practitioner, he has not done in such a way as to indicate that he lacks the qualities of character which are the necessary attributes of a person entrusted with the responsibilities of a practitioner. The Board is satisfied that although Dr Veettill's conduct was serious, having regard to his previous history, it should be treated as an isolated incident influenced by the stressful situation in which he placed himself. The Tribunal is satisfied that, upon completion of the period of suspension, Dr Veettill will be fit to resume practice.
53 The Tribunal notes that Dr Veettill has effectively been suspended since June 2014. The Tribunal is also satisfied that an additional period of 12 months is sufficient to protect the public. The conditions imposed on 18 June 2014 should apply to Dr Veettill's 12 months of practice after his suspension ends.
54 Dr Veettill 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.
Orders
1. Dr Premanandan Vayal Veettill is reprimanded.
2. Pursuant to s 192(d) of the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010, Dr Premanandan Vayal Veettill's registration is suspended for a period of 12 months from 1 March 2016.
3. Pursuant to s 196(2)(b) of the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010, Dr Premanandan Vayal Veettill's registration from 1 March 2017 to 1 March 2018 is subject to the following conditions:
(a) Dr Veettill will not contact or meet with female patients outside of a clinical setting;
(b) Dr Veettill may only practise within a hospital or private consulting rooms;
(c) Dr Veettill:
(i) will not consult with, or treat, any female patients without an adult female chaperone, who is acceptable to the patient, present throughout the consultation or treatment; and
(ii) must complete a log sheet for female patients consulted or treated in the form of the chaperone log provided by the Medical Board of Australia, which is to be countersigned by the chaperone in attendance, and submitted to the Medical Board of Australia on a fortnightly basis, other than when completing his clinical examinations at the Royal Australian College of Physicians .
(d) Dr Veettill:
(i) must inform the Australian Health Practitioner Regulation Agency of all of his employers and places of practice and any changes to such on an ongoing basis;
(ii) consents to the Australian Health Practitioner Regulation Agency providing all of his employers and places of practice with a copy of the conditions on his registration; and
(iii) consents to his employer(s) reporting to the Australian Health Practitioner Regulation Agency on his professional performance.
I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J C CURTHOYS, PRESIDENT
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