| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : MEDICAL PRACTITIONERS ACT 2008 (WA) CITATION : MEDICAL BOARD OF AUSTRALIA and COSTLEY [2013] WASAT 2 MEMBER : JUSTICE J A CHANEY (PRESIDENT) MS S GILLETT (MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)
DR G LIPTON (SENIOR SESSIONAL MEMBER)
HEARD : 4 OCTOBER 2012 AND 6 NOVEMBER 2012 WITH SUBMISSIONS ON 29 NOVEMBER 2012 AND 6 DECEMBER 2012
DELIVERED : 8 JANUARY 2013 FILE NO/S : VR 4 of 2011 BETWEEN : MEDICAL BOARD OF AUSTRALIA Applicant
AND
TERENCE COSTLEY
Respondent
Catchwords: Professions - Medical pracitioner - Sexual misconduct - Penalty - Whether suspension or cancellation of registration appropriate - Conduct falling short of that reasonably expected - Writing prescription without having examined patient - Issuing false certificate as to unfitness for work - Appropriate penalty - Whether order for nonpublication of name of practitioner appropriate
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Costs - Vocational proceedings - Principles to be applied - Approach to assesment of costs Legislation: Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 196(4)(a)
Legal Practitioners (State Administrative Tribunal) Determination 2010
Medical Act 1894 (WA), s 13(3)
Medical Practitioners Act 2008 (WA), s 116, s 116(1), s 116(2)
State Administrative Tribunal Act 2004 (WA), s 61(4)(g), s 62, s 62(3), s 69 Result: Practitioner's registration cancelled
On findings of substandard conduct, practitioner fined $1000 on each finding
Practitioner ordered to pay costs of application
Summary of Tribunal's decision: The respondent, Dr Terence Costley, admitted to two findings of sexual misconduct relating two separate patients. He also admitted to improper conduct by instigating a personal relationship with a third patient, and to two findings of conduct falling short of the standard expected of a medical practitioner. The question for determination by the Tribunal was the penalties to be imposed in relation to the five findings against the practitioner.
The Medical Board of Australia submitted that the practitioner's registration should be cancelled and his name removed from the register in relation to the two findings of sexual conduct and the finding of improper conduct. Dr Costley argued that the appropriate penalty was a period of suspension rather than deregistration.
The Tribunal examined a number of decisions involving similar conduct that had been reported in various jurisdictions. It concluded that the circumstances surrounding the findings of sexual misconduct and improper conduct were such that the appropriate penalty was cancellation of the respondent's registration as a medical practitioner.
In relation to the two less serious findings of conduct falling short of the standard expected of a medical practitioner, the Tribunal imposed fines of $1,000. The Tribunal also ordered the respondent to pay the Medical Board's costs, although in a sum significantly less than the costs claimed by the Board. The Tribunal discussed the principles to be applied in relation to the award of costs in vocational regulatory matters before the State Administrative Tribunal.
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Category: B
Representation:
Counsel:
Applicant : Ms P Cahill SC and Ms A Bishop
Respondent : Mr J Ley and Ms J Wilcox
Solicitors:
Applicant : DLA Piper Australia
Respondent : Panetta McGrath Lawyers
Case(s) referred to in decision(s):
A Practitioner v The Medical Board of Western Australia [2005] WASC 198
A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253
Childs v Walton [1990] NSWCA 41
Health Care Complaints Committee v Holmes [2010] NSWMT 19
Health Care Complaints Committee v Litchfield (1997) 41 NSWLR 630
Jemielita v The Medical Board of Western Australia (unreported, WASC, Library No 920584, 13 November 1992)
Legal Profession Complaints Committee and in de Braekt 2012 WASAT 58 (S)
Medical Board of Australia and Woollard 2012 WASAT 209 (S)
Medical Board of Western Australia and Smith [2006] WASAT 213
New South Wales Bar Association v Cummins (2001) 52 NSWLR 279
Peeke v The Medical Board of Victoria (unreported, SCt of Victoria, Library No 10170, 19 January 1994)
Re A Medical Practitioner [1995] 2 Qd R 154
Re Dr Parajuli [2010] NSWMT 3
Sherman v Medical Practitioners Board of Victoria (Occupational and Business Regulation) [2000] VCAT 456
Wilks v Medical Practitioners Board of Victoria (Occupational and Business Regulation) [2007] VCAT 2439
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 The Medical Board of Australia (Board) made two applications (VR 66 of 2011 and VR 4 of 2011) against a medical practitioner, Dr Terence Costley, alleging that Dr Costley was guilty of misconduct or improper conduct in a number of respects. The complaints proceeded through the Tribunal's processes and were eventually listed for hearing. On the date that the hearing was to commence, the parties reached agreement as to both the relevant facts, and as to the characterisation of the conduct which Dr Costley admitted. In light of that development, and at the parties' request, the matter was adjourned to a later date for a hearing as to the appropriate penalty that should be imposed. At the hearing, the Board argued that Dr Costley's registration should be cancelled and his name removed from the register of medical practitioners. Dr Costley submitted that an appropriate order is for suspension of his registration for a period of two years backdated to 18 August 2010, coupled with the imposition of a condition on his registration that he continue to consult and receive treatment from a psychiatrist with reports to be provided to the Board every six months. In relation to some less serious findings of substandard conduct, Dr Costley submitted that there should be a reprimand. In addition, the parties subsequently were unable to agree as to an appropriate order in relation to the costs of the application. It is to those matters that these reasons are directed. 2 When the matter was first listed for hearing, counsel for the Board sought an order that the names of certain witnesses not be published and Dr Costley sought that certain background facts referred to in the respondent's statement of issues, facts and contentions not be published. Those applications are granted for reasons delivered orally at the time. At the same time, Dr Costley made an application that his name not be published in connection with the proceedings. For reasons which we will deal with below, we have concluded that Dr Costley's name should not be the subject of a nonpublication order.
The agreed findings 3 The findings to which the parties agreed in VR 66 of 2011 are as follows: 1 Between 2008 and 2010, the Respondent engaged in sexual misconduct, within the meaning of section 76(1)(e) of the Medical (Page 5)
Practitioners Act 2008 (WA) (Act), by forming and maintaining a personal and sexual relationship with [F], when [F] was his patient. (Finding 1) 2 In December 2008 and January 2009, the Respondent engaged in sexual misconduct, within the meaning of section 76(l)(e) of the Act, by having sexual intercourse with [S], when [S] was his patient. (Finding 2) 3 In or about 1998, the Respondent engaged in conduct that fell short of the standard that a member of the public is entitled to expect of a medical practitioner, and the standard that a member of the medical profession would reasonably expect of a medical practitioner, within the meaning of sections 76(l)(d) (i) and 76(l)(d)(ii) of the Act, by writing a prescription for medication which the Respondent intended to be for the treatment of [P], without having examined [P], and by naming in the prescription as the person by whom the medication was to be used or for whose treatment it was intended, a person other than [P]. (Finding 3) 4 In or about 2003, the Respondent engaged in conduct that fell short of the standard that a member of the public is entitled to expect of a medical practitioner, and the standard that a member of the medical profession would reasonably expect of a medical practitioner, within the meaning of sections 76(l)(d)(i) and 76(l)(d)(ii) of the Act, by issuing a medical certificate for [P], certifying that she was unfit for work for 24 hours, when he knew that she was not so unfit. (Finding 4) 4 The findings which the parties agreed in VR 4 of 2011 were as follows: … [O]n 27 February 2010, and thereafter, the Respondent acted improperly, within the meaning of section 76(l)(b)(iii) of the Medical Practitioners Act 2008 (WA), by instigating a personal relationship with [G], when [G] was his patient, and by forming and maintaining a personal and sexual relationship with [G], when she was his former patient. (Finding 5) 5 Dr Costley is now 57 years old. At all relevant times he was registered as a medical practitioner under the relevant applicable legislation. It was not in issue that he closed his practice on 18 August 2010, and has not practised since that time. His registration expired on 30 September 2011, and he did not then apply for renewal. The consequence of that is that he was then not a 'medical practitioner' for the purposes of the Medical Practitioners Act 2008 (WA) (MP Act). By reason of s 116(2) of the MP Act, the powers of the Tribunal in relation to (Page 6)
a person who is no longer a medical practitioner are limited to various orders which Dr Costley, to his credit, accepted were inappropriate having regard to the seriousness of the findings of sexual misconduct to which he had agreed. On that basis, he applied for, and was granted by the Board, registration as a nonpractising practitioner subject to his undertaking not to practise medicine until this Tribunal hands down its decision on penalty. 6 The facts underlying the findings in relation to each matter in VR 66 of 2011 were as followings: 7 Finding 1 6 [F]was born on [date 1985]. 7 Dr Costley was [F]'s treating general practitioner and provided therapeutic services to [F] from 4 December 1989. 8 In the course of treating [F] as her general medical practitioner, Dr Costley: 8.1 knew that [F] had a history of having been sexually abused as a child and abused in a domestic environment 8.2 treated [F] for depression, self harming and suicidal behaviours, and abnormal dieting behaviour 8.3 diagnosed [F] as suffering bulimia nervosa with anxiety 8.4 saw [F] regularly at his clinical practice for long counselling appointments 8.5 referred [F] to a psychologist. 9 In 2008, Dr Costley began a sexual, intimate and personal relationship with [F], at times during which [F] lived with Dr Costley at his home. 10 Dr Costley provided therapeutic services to [F] whilst he was in a sexual, intimate and personal relationship with [F]. 11 Dr Costley and [F]'s sexual, intimate and personal relationship ended in February 2010. 8 Finding 2 12 [S]was born on [date 1983]. (Page 7)
14.1 Dr Costley treated [S] for depression, substance use, self harming and suicidal behaviours 14.2 Dr Costley prescribed various medications to [S], including venlafaxine (having the brand name Effexor and being an antidepressant of the serotonin-norepinephrine reuptake inhibitor class), diazepam (a benzodiazepine derivative drug) and dexamphetamine (a psychostimulant drug) 14.3 [S] was diagnosed with bipolar affective disorder by a consultant psychiatrist, and was referred by Dr Costley to another psychiatrist 14.4 Dr Costley saw [S] regularly at his practice for long counselling appointments. 15 In December 2008 and in January 2009, Dr Costley had sexual intercourse with [S] on 3 occasions. 16 Dr Costley was [S]'s treating general practitioner at the time he had sexual intercourse with her. 17 Dr Costley continued his therapeutic relationship with [S] after having sexual intercourse with her. 18 [S] consulted Dr Costley for the last time on 18 August 2010. 9 Finding 3 and Finding 4 (Page 8)
5 In or about 2003, Dr Costley provided [P] with a medical certificate stating in substance that she was unfit for work for 24 hours in circumstances where Dr Costley knew that [P] was not unfit. 10 The facts relevant to Finding 5 concerning G were agreed as follows: 3 From 1 November 1992 to 27 February 2010, Dr Costley was [G]'s treating general practitioner and provided therapeutic services to [G]. 4 Dr Costley was [G]'s former husband's [S] treating general practitioner between 1993 and 2010. 5 [G] and [S] separated in July 2006. 6 At all material times Dr Costley was also [G]'s parents' and children's treating general practitioner. 7 On or about on or about 22 October 2009, Dr Costley signed a Patient Assessment (Better Access Mental Health Care Plan) for [G], which included a summary of a mental status examination of [G] and diagnosis, in relation to which Dr Costley [made certain diagnoses and recommendations for treatment]. 8 [G]'s clinical psychologist, Jacquie Bicknell, sent a report dated 30 November 2009 to Dr Costley about [G]. 9 On 27 February 2010, [G] consulted with Dr Costley to obtain test results. 10 In the course of the evening of 27 February 2010, and some time after the consultation referred to in the previous paragraph, Dr Costley telephoned [G] at home. In the course of that telephone discussion, Dr Costley asked [G] if she would be interested in going out with him. [G] said she was interested. Dr Costley said to [G] that he could no longer be [G]'s treating doctor, and [G] agreed to that. 11 In the week commencing 1 March 2010 Dr Costley and [G] went out together socially. They then formed a personal relationship, which became a sexual relationship later that month. In April 2010 they began living together. (Page 9)
The applicable legislation 11 The conduct the subject of the various complaints occurred variously between 1998 and 2010. During that period, the legislation regulating the medical profession was repealed and replaced twice. The Medical Act 1894 (WA) (the 1894 Act) applied up until 1 December 2008, when it was replaced by the MP Act which in turn was repealed and replaced by the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (the National Law) in October 2010. The parties were agreed that, by operation of the relevant transitional provisions, these matters should be dealt with under the MP Act save that the question of penalty in respect of the conduct the subject of Finding 3 and Finding 4 should be determined in accordance with s 13(3) of the 1894 Act. We agree that that is the correct approach.
The appropriate penalty 12 The findings against Dr Costley range in seriousness. Finding 1 and Finding 2, which involve sexual misconduct are, in the circumstances in which they occurred, most serious. Finding 5, which involved acting improperly by instigating a personal relationship with a patient, is also serious. Finding 3 and Finding 4, involving substandard conduct clearly invite a lesser penalty. In those circumstances, it is appropriate first to consider the penalty which should be imposed in relation to the most serious conduct. 13 The range of penalties available under s 116 of the MP Act include, relevantly, that the respondent comply with such conditions as the Tribunal may impose on the practitioner's registration (s 116(1)(f)), payment of a penalty not exceeding $25,000 (s 116(1)(i)), suspension from practice of medicine for a period not exceeding two years (s 116(1)(j)) or cancellation of registration and removal of the practitioner's name from the register (s 116(i)(k)). 14 The principles applicable to the imposition of disciplinary penalties were identified by Owen J in Jemielita v The Medical Board of Western Australia (unreported, WASC, Library No 920584, 13 November 1992) where his Honour said: The primary consideration is the public interest. The consequence of an adverse finding is drastic for the practitioner. The purpose of providing such a drastic consequence is not punishment of the practitioner as such, but protection of the public. The public needs to be protected from delinquents and wrong doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant (Page 10)
15 We agree with the principle referred to in Health Care Complaints Committee v Holmes [2010] NSWMT 19 (Holmes) at [36] where it was said that: … deregistration may be required in serious cases of professional misconduct in order to adequately achieve the objectives of minimising the risk of recurrence and of deterring other practitioners from engaging in such conduct and thereby maintaining public confidence in the profession: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Re Dr Parajuli [2010] NSWMT 3 at [32]; Saville v Health Care Complaints Commission & Anor [2006] NSWCA 298 at [45]; Re Dr Prakash v Health Care Complaints Commission [2006] NSWCA 153, Santow JA at [64] and Basten JA at [101]; Childs v Walton [1990] NSWCA 41. 16 The question of fitness to practice must be determined at the date of hearing - A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 at [21]. 17 The respondent submitted that a court or tribunal should only cancel a practitioner's registration if it considers that he or she is permanently unfit to practice, and unless the court is persuaded to that view, the proper order will usually be one of suspension or fine, instead of cancellation. That proposition is extracted from the reasons of Spigelman CJ in New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 at [26], and the cases there referred to. 18 We do not consider that the observations by Spigelman CJ suggest that, in order to impose deregistration, the Tribunal must be satisfied that a practitioner will never be eligible for re-registration. Indeed, at [28] Spigelman concluded: In the present case, I am satisfied that the barrister's complete disregard of his legal and civic obligations with respect to the payment of income tax was such that he must be regarded, at the present time, as permanently unfit to practice. (Emphasis added) (Page 11)
19 We also note that s 196(4)(a) of the National Law specifically contemplates an application for registration by a person whose registration has been cancelled. That is inconsistent with the proposition that cancellation of registration is reserved to those who are permanently unfit to practise. 20 We accept that an order for deregistration must be based on a conclusion that the practitioner is unfit to practice. That conclusion may be drawn from the very nature of the conduct of which the practitioner has been found guilty, notwithstanding that there may be mitigating circumstances which suggest that a risk of repetition of the conduct is low. 21 As we have observed, the sexual misconduct the subject of Finding 1 and Finding 2 is extremely serious. Both patients were extremely vulnerable, a fact which must have been abundantly clear to Dr Costley. The agreed facts concerning the nature of the treatment which Dr Costley had administered to F and S respectively, demonstrate that vulnerability. There was a very significant age difference between Dr Costley and the two patients concerned. Dr Costley maintained his therapeutic relationship with both F and S during the period that he was in a sexual relationship with them. In the case of S, he continued the therapeutic relationship for a long period after the sexual relationship ceased. 22 In his submissions on penalty, Dr Costley asserted a number of additional facts concerning his relationship with each of F and S. Much of the detail of what was asserted was not the subject of the evidence tendered by either party for the purposes of the hearing, although it was entirely consistent with the agreed facts, the facts upon which psychiatric evidence before the Tribunal was based, and documents, such as Dr Costley's response to the investigation by the Board, which were tendered in evidence. At least to the extent that the submissions contain admissions against his own interests, we consider it appropriate that we proceed on the basis that the submissions on the factual background be accepted as accurate. The additional factual assertions contained in Dr Costley's submissions demonstrate a high level of dependence on the part of both F and S upon Dr Costley. 23 In the case of S, she appears to have had a dysfunctional domestic situation and was described as leading a somewhat 'nomadic' existence such that she would sleep at night on the veranda of the medical practice at which Dr Costley worked. On the first night on which Dr Costley had sexual intercourse with her, S had been found on the veranda of the medical practitice, and taken to a hospital for treatment. Upon her (Page 12)
discharge, police told her she could not return to sleep on the veranda. She telephoned Dr Costley and asked if he could pick her up because she had nowhere to stay. She stayed that night at his home where sexual intercourse between them took place. The other two incidents were said to have occurred in similar circumstances. 24 Save that the sexual relationship was apparently consensual (in the criminal law sense and ignoring the significant power imbalance between the parties and the vulnerability of the patient), it is not easy to imagine a more egregious breach of trust or of appropriate professional boundaries that occurred in relation to S. The behaviour by Dr Costley has the hallmarks of an opportunistic event designed to take advantage of the extreme vulnerability of the patient. 25 The circumstances of the sexual misconduct in relation to F and S immediately suggest that cancellation of registration is the appropriate penalty. It is necessary, however, to have regard to Dr Costley's submissions as to why that course is not appropriate. Before doing so however, we will raise some observations about Finding 5. 26 A distinction between Finding 5, and Findings 1 and 2 is that Dr Costley took steps to terminate his therapeutic relationship with G once it became clear that he was embarking upon a personal relationship with her. As the agreed facts demonstrate, however, Dr Costley contacted G on the same day as she had consulted him in his surgery and proposed a social or personal relationship. She was at that point still his patient, and the opportunity for a personal relationship had clearly emerged through his contact with G as her family doctor. Dr Costley submits, and we accept for the purposes of considering penalty, that G did not suffer from the same level of emotional and social vulnerability as did F and S. 27 Dr Costley obtained his medical qualifications in Wales, England in 1980. He practised in Wales from 1980 to 1988 when he emigrated with his then wife and two children to Australia. From February 1989 until August 2010, he practised in two locations in High Wycombe, Perth. According to his submission, the reason for closing that practice in August 2010 was because of 'an emotional breakdown' which he suffered at the time. 28 At the time of his relationship with F, Dr Costley says that: a) he was suffering from undiagnosed anxiety, depressive and adjustment disorders for which he has subsequently been treated; (Page 13)
b) he was going through a breakdown of his second marriage and was representing himself in extremely acrimonious proceedings in the Family Court of Western Australia; c) he was, throughout 2009, the subject of an investigation by the Police as a result of complaints made by his estranged wife (which were ultimately not pursued by the Police); and d) he was extremely depressed and anxious and found that his relationship with F provided him with support at a time when that was badly needed. 29 He relies on the same matters by way of explanation of his relationship with S. 30 He notes that all of these matters were brought to the Board's attention by P, who was the subject of Finding 3 and Finding 4. P was at the time and, Dr Costley said, remains a close friend of Mrs Costley, with whom Dr Costley was, at the time of the complaints, embroiled in acrimonious family court proceedings. He notes that neither F nor S has ever complained to the Board about his conduct. If by that submission, Dr Costley intended to suggest that the lack of complaint somehow lessened the seriousness of his conduct, the submission is misconceived, and demonstrates some lack of insight into the rationale for the importance of professional boundaries being observed by medical practitioners. 31 The Tribunal was assisted by the evidence of two psychiatrists. Dr Costley consulted a psychiatrist, Mr Paul Skerritt, initially in October 2010. He has seen Dr Skerritt on a number of occasions since then. Dr Skerritt noted that Dr Costley's life had obviously been marked by more relationships, and more unstable relationships, than most people. He diagnosed Dr Costley as suffering from anxiety and depressive disorders which he considered to have been present throughout the history of Dr Costley's various relationships. 32 Dr Costley also saw Dr James FellowsSmith in October 2011 at the request of the Board. He diagnosed Dr Costley has having an adjustment disorder and demonstrating a cluster 'C' personality involving dependent, avoidant and obsessive compulsive traits. He considered that underlying personality traits are likely to persist, and that there was a risk of further sexual misconduct although the prospect of that risk eventuating he (Page 14)
thought was very low given that Dr Costley is in receipt of appropriate treatment for his condition. 33 The two expert witnesses conferred in advance of the hearing and gave evidence together. They were substantially in agreement on the diagnosis, and that Dr Costley's depression was currently resolved through the treatment he had received. They considered that Dr Costley had a low risk of reoffending because of the salutary effect of the consequences of his actions, the subject of these complaints including the current proceedings. They were in agreement that given the absence of stressors which had been present at the time of the relationships with F, S and G (at its commencement), the risk of reoffending would be extremely low, particularly in view of the current, apparently stable, relationship which Dr Costley has. They agreed however that a relapse of any major depressive disorder would be likely to further impair Dr Costley's judgment. 34 Our attention was drawn to various decisions on penalty in relation to doctors who had formed personal or sexual relationships with patients. As counsel for the Board observed, all of those cases which involved more than one patient have resulted in cancellation of registration. In Health Care Complaints Committee v Litchfield (1997) 41 NSWLR 630, a doctor was found guilty of professional misconduct, over a period of some five and a half years, by conducting examinations of four young female patients during which he had touched and dealt with each of them in an inappropriate and overtly sexual way. The Court of Appeal overturned the Medical Tribunal's decision to suspend the practitioner and to require a psychiatric assessment and report and instead ordered that the practitioner's name be removed from the register. 35 In Wilks v Medical Practitioners Board of Victoria(Occupational and Business Regulation) [2007] VCAT 2439, a practitioner found guilty of five allegations, four of which concerned boundary transgressions of a sexual nature with three patients, was disqualified from registration and prevented from reapplying for a period of three years and six months (which had the effect that he would have been out of practice for five years before being eligible for re-registration). 36 In Sherman v Medical Practitioners Board of Victoria (Occupational and Business Regulation) [2000] VCAT 456, the Tribunal affirmed a decision of the Medical Practitioners Board to cancel the registration of a doctor who had engaged in intimate relationships with seven patients. (Page 15)
37 In Childs v Walton [1990] NSWCA 41, the Court of Appeal upheld an order deregistering a doctor who had engaged in intimate relationships with two patients in circumstances where her conduct was influenced by a breakdown of her marriage and the failure of her relationship with one of the patients. 38 Comparison between penalties imposed in different cases must be approached with caution, and we are mindful that the circumstances of each of the cases referred to above differ. Accordingly, we do not suggest that the mere fact that misconduct of a sexual nature involves more than one patient is determinative of the appropriate penalty. It does, however, provide a strong indication of unfitness to practise as illustrated by the four cases referred to above. 39 Deregistration was also ordered in Re Dr Parajuli [2010] NSWMT 3 where a general practitioner admitted that he had engaged in professional misconduct by making sexually suggestive remarks during a consultation with a female patient, arranging to meet the patient at her home for the purpose of having sexual contact with her, and going to her home and having sexual intercourse with her. The practitioner expressed remorse and contrition. The Medical Tribunal ordered deregistration, but permitted the practitioner to apply for a review of the order at the expiration of six months. 40 In a number of previous decisions, practitioners have been suspended for various periods as a result of misconduct of a sexual nature with patients. In Re A Medical Practitioner [1995] 2 Qd R 154, the Medical Assessment Tribunal of Queensland found a medical practitioner guilty of two counts of professional misconduct in commencing and maintaining a sexual relationship whilst the therapeutic relationship continued. Dowsett J, who conducted the hearing with the assistance of assessors, was satisfied that it was unlikely that the respondent would offend again, and that he truly regretted his breach of duty. He noted that after the single act of sexual intercourse which he found to have occurred, the practitioner terminated the relationship very quickly. His Honour observed that it was necessary to mark his 'disapproval in such a way as to discourage other practitioners from similar conduct and to show the public that such conduct is not tolerated in members of the medical profession'. He did not, however, consider that removal of the practitioner from the register was necessary and ordered that his registration be suspended for six months. (Page 16)
41 In Holmes, a practitioner who had engaged in an inappropriate and sexual relationship with a female patient for almost 10 years was suspended for a period of 12 months with orders that the practitioner continue ongoing treatment and undertake a medical ethics course. The Tribunal noted the practitioner's genuine remorse for what he had done and the fact that he had on numerous occasions attempted to bring the relationship to an end and that he had sought psychiatric assistance before the complaint was made. 42 A 12 month suspension was imposed on a medical practitioner in Medical Board of Western Australia and Smith [2006] WASAT 213 where a female general practitioner was found guilty of infamous conduct in a professional respect in that she had encouraged and been involved in a close personal relationship of an intimate and emotional nature with a female patient whilst she was the patient's general practitioner. The Tribunal accepted that the practitioner suffered from depression at the time, and had a genuine therapeutic concern for the patient. Noting that the practitioner had taken steps to ensure that she did not engage in similar conduct again, the Tribunal concluded that suspension was appropriate. 43 In A Practitioner v The Medical Board of WesternAustralia [2005] WASC 198, a practitioner who was treating a woman for psychological and psychiatric problems formed a close personal relationship with the patient. The practitioner terminated the therapeutic relationship with her and referred her to another doctor. However, he maintained a personal relationship with her, and this later became a sexual relationship. Ultimately the doctor married his former patient. The Court overturned a decision of the Medical Board to suspend the doctor for 12 months, and instead ordered that he be reprimanded and fined $10,000, which was the maximum fine which could be imposed under the relevant legislation at the time. The Court had regard to the practitioner's unblemished record over a period of 27 years in practice, positive testimonials from colleagues and patients and the absence of any suggestion of a want of clinical competence. 44 In Peeke v The Medical Board of Victoria (unreported, SCt of Victoria, Library No 10170, 19 January 1994), the Supreme Court of Victoria set aside an order of the Medical Board of Victoria suspending a practitioner for six months, and instead imposed a reprimand. The circumstances of the case were that a 65 year old general practitioner had engaged in misconduct by having sexual intercourse with a patient, who was in her mid 30s, on a number of occasions over four years. The Court noted that the practitioner had unsuccessfully sought to terminate the (Page 17)
relationship on several occasions, and that the complainant not only consented to the relationship, but actively pursued the relationship and threatened the practitioner if he terminated it. The Court also noted that the complaint was actually brought as an act of revenge because of the practitioner's termination of the relationship, and it considered that it was virtually certain that there would be no repetition of the conduct in future. 45 It is desirable that there be consistency in penalties imposed for conduct of a particular character in professional disciplinary proceedings. As mentioned above, caution in making comparisons is called for because of the variety of factual circumstances involved in each case, and differences in the characterisation of the conduct and the legislation under which various decisions have been made. What can be extracted from the review of the cases to which we were referred is the proposition that most cases of sexual misconduct by medical practitioners will attract either suspension from practice or deregistration. So much was expressly acknowledged by counsel for Dr Costley. 46 In our view, the findings of sexual misconduct in relation to F and S should be placed toward the more serious end of the spectrum of sexual misconduct. That is so having regard to: • the particular vulnerability of the two patients concerned; • the continuation of the therapeutic relationship during the currency of the sexual relationship; • the significant age disparity between Dr Costley and each of the two patients; and • the fact that Dr Costley had an opportunity, while the relationships continued, to reflect on his actions, but does not appear to have done so, or if he did, to take any action as a result. 47 We acknowledge that the events with F and S took place at a time when Dr Costley was dealing with a breakdown of his marriage, and that his depression and anxiety may well have been manifesting itself at that time. Having said that, however, we note that the family court proceedings, and the complaints to police made by his estranged wife, occurred after the sexual relationship with F had been on foot for some months. (Page 18)
48 We note that the character references tendered on Dr Costley's behalf speak highly of his contribution to the local community as a medical practitioner, and as to his professional competence and compassion. We also note the view of both psychiatrists that whilst Dr Costley remains in his current stable relationship and his improved mental health is maintained through ongoing treatment, the risk of his reoffending in this way is greatly reduced. We are also mindful, however, of their evidence that Dr Costley has personality traits which have contributed to his offending conduct. Those traits are less susceptible to treatment. There remains, therefore, a risk that, were Dr Costley to again be subject to the stressors of a kind which were present from 2008 to 2010, the risk of similar misconduct would be more pronounced. 49 We accept that, viewed by itself, conduct in relation to Finding 5 might adequately be dealt with by the imposition of a period of suspension rather than removal from the register. Both the Board and Dr Costley approached the questions of penalty, however, on the basis that a global penalty should apply in relation to the three findings concerned with personal relationships with patients. In our view, Findings 1, 2 and 5 together demonstrate unfitness to practise medicine. The conduct commenced in late 2008, and continued, at least intermittently, until late February 2010 when Dr Costley's relationship with G commenced. Although for at least some of that period, and possibly the whole period, Dr Costley suffered from depression and anxiety, neither psychiatrist suggested that Dr Costley was unable to appreciate the nature of his conduct. Although some time has passed Dr Costley now enjoys an apparently stable relationship with his partner, we are not satisfied that it can yet be said that he is fit to resume practice of medicine. It follows that, in relation to Findings 1, 2 and 5, there should be an order that Dr Costley's registration as a medical practitioner be cancelled. 50 As to Finding 3, we accept that Dr Costley was motivated to assist P in relieving the symptoms from which she was suffering, and that after the prescription had been delivered to P, Dr Costley attended P's home and conducted an examination on her. His motivation for writing the prescription in the name of his employee J, rather than writing it in P's name and having J collect it as P's agent, is not clear. The privilege extended to medical practitioners to prescribe medication requires appropriate adherence to careful and proper practice. In that context, the creation of a document which is known to be false in a material way is not to be treated lightly. In our view, it is appropriate that there be a fine imposed in relation to Finding 3. Bearing in mind that, at the relevant (Page 19)
time, the maximum fine permitted under the legislation was $10,000, we are of the view that a fine of $1,000 is appropriate in relation to Finding 3. 51 As to Finding 4, Dr Costley submits that it should be viewed as a foolish act in the course of a social event in which the influence of alcohol may have played a part. He submits that a reprimand is appropriate. The Board submits that the provision of a false certificate is misleading, if not dishonest, and should attract a substantial fine. 52 Like prescribing drugs, the certification of a patient as unfit for work requires care and propriety on the part of medical practitioners. The obvious purpose of such certificates is to enable employers to rely on the doctor's opinion for the purpose of accepting that the patient is entitled to sick leave. The certificate gives rise to financial consequences. The provision of a false certificate is therefore to be viewed seriously. 53 We are mindful that the events, the subjects of Findings 3 and 4, occurred a long time ago, and we accept that they appear to have been drawn to the Board's attention in the context of acrimonious matrimonial proceedings. We do not consider, however, that the seriousness of the conduct would be adequately reflected by a reprimand, and in the circumstances consider that a fine of $1,000 should also be imposed in relation to finding 4.
Publication of Dr Costley's name 54 As mentioned in the introduction to these reasons, Dr Costley sought an order that his name not be published in connection with these proceedings. 55 Section 62 of the State Administrative Tribunal Act 2004 (WA) empowers the Tribunal to order that information that might enable a person who has appeared before the Tribunal to be identified not be published. The Tribunal may do so where an order is necessary to avoid the publication of confidential information or information the publication of which would be contrary to the public interest - s 61(4)(g) read with s 62(3) of the SAT Act. It was pursuant to that provision that we made an order that the names of the patients involved in these matters not be published. Dr Costley seeks a similar order in relation to his own identity on the basis that identification of him may lead to identification of the patients concerned. He also submits that issues surrounding his mental health at the relevant time, and his treatment by Dr Skerritt and Dr Skerritt's opinion as to his mental state, are confidential information of considerable sensitivity. He also submitted that publication of his name (Page 20)
might have a potentially deleterious effect on his ability to practise in the future. 56 We reserved a ruling on Dr Costley's application for suppression of his name so that his submissions could be considered in the light of the contents of these reasons for our decision on penalty. That has enabled us to review the contents of these reasons so as to ascertain whether nonpublication of his name is necessary, or appropriate, to avoid the consequences referred to by Dr Costley. 57 In preparing these reasons, we have taken care to limit the accounts of the relevant factual circumstances so as to minimise the risk of identification of any of the patients concerned. We do not consider that nonpublication of Dr Costley's name is necessary to prevent identification of the patients. 58 We accept that the fact that Dr Costley has undergone treatment from Dr Skerritt, and the diagnosis reached by Dr Skerritt and Dr FellowsSmith is information which would normally be considered confidential. With this in mind, we have consciously endeavoured to avoid any unnecessary detail concerning Dr Costley's history, diagnosis or treatment. Having been mindful of that concern, we consider that the public interest in publication of disciplinary proceedings (which is reflected in the general requirement that the Tribunal holds its proceedings in public), is not outweighed by the desirability of avoiding publication of the information within these reasons which might be considered confidential. Where a practitioner the subject of disciplinary proceedings chooses to rely on psychiatric or psychological reports by way of defence or mitigation of penalty in disciplinary proceedings, it can generally be expected that that fact alone will not be sufficient to justify the exercise of the discretion to order nonpublication of that practitioner's name. 59 Nor do we accept that the fact that publication of Dr Costley's name may have a potentially deleterious effect on his ability to practise in the future provides an adequate basis for an order for nonpublication in this case. Publication of adverse disciplinary proceedings will always have a potential to affect a practitioner's future practice. We do not consider that it is in the public interest to order nonpublication of the practitioner's identity on that basis. 60 It is for those reasons that we have decided that Dr Costley's name should be published in these reasons. (Page 21)
Costs 61 The Board seeks an order that the respondent pay its costs. A schedule attached to its submissions indicate that the Board's solicitors have rendered fees of $129,811 to the Board in relation to these matters up until 28 August 2012. It does not seek recovery of all of those fees from Dr Costley, but rather seeks recovery of an amount of $85,675.26 in relation to its solicitors' fees, together with disbursements of $41,564.56 by way of disbursements to counsel ($32,598.50) and to Dr FellowsSmith ($8,970). The disbursements claimed are inclusive of the GST paid. 62 Dr Costley does not resist the making of an order that he pay an amount of costs to the Board. He submits, however, that the amount claimed is wholly excessive and that no more than $50,000 inclusive of counsel fees and disbursements should be allowed. Counsel for Dr Costley argues that the ultimate hearing on 4 October 2012 was limited to the question of penalty alone, and that there were no factual issues in contention and the matter was not of a complex nature. He argues that the matter was not of such a nature as to warrant the briefing of senior counsel, and that the disbursement for counsel fees should be reduced accordingly. 63 The Tribunal's approach to costs in vocational disciplinary matters was recently summarised in Legal Profession Complaints Committee and in de Braekt 2012 WASAT 58 (S) (in de Braekt (S)) at [51], where the Tribunal said: Although s 87(1) of the SAT Act contemplates that, generally, parties bear their own costs in proceedings before the Tribunal, s 87(2) of the SAT Act confers a discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of another party. The Tribunal's established practice in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act in vocational disciplinary proceedings is that a successful application by a vocational regulatory body, such as the Committee, will usually result in an order for costs being made in favour of the vocational regulatory body: Medical Board of Western Australia and Roberman [2005] WASAT 81 (S); (2005) 39 SR (WA) 47 (Roberman) at [30] referred to with approval in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [35]. The policy basis behind this practice is that vocational regulatory bodies 'perform a function which promotes the public interest, and usually with limited resources' and '[t]he financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations (Page 22)
against the practitioner concerned are properly and thoroughly presented': Roberman at [30] 64 As to the assessment of costs, the Tribunal said in indeBraekt(S) at [53]: In relation to the amount or quantum of costs, the Tribunal's usual practice is to determine the amount of work which was reasonable and necessary to properly prepare and present the case and then to apply, as a useful guide as to the maximum rates which might be allowed on a party/party basis, the relevant hourly or daily rate specified in the Legal Practitioners (State Administrative Tribunal) Determination 2010 (Determination): J&PMetals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S) at [9] and Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASATִ125 (S) at [35] [36] and [47] [48]. The Determination prescribes the maximum amounts which can be charged without a written agreement as to costs with a client under s 282 of the LP Act. The Legal Costs Committee has not prescribed a scale of costs for the Tribunal in respect of party/party costs, because the Legal Costs Committee has recognised that 'the overriding philosophy of the Tribunal, as expressed through its enabling legislation, is that parties appearing before the Tribunal are to bear their own costs of proceedings': Legal Practitioners (State Administrative Tribunal) Report 2010 (WA) para 3b. The Determination is, therefore, not binding in the present case, but rather, is to be used as a guide as to the maximum rates which might be allowed on a party/party basis. 65 These passages were referred to in the recent decision of the Tribunal in Medical Board of Australia and Woollard 2012 WASAT 209 (S) (Woollard). In that case, the Tribunal observed at [50] - [51]: 50 The Tribunal's main objectives stated in s 9 of the SAT Act include to 'minimise the costs to parties'. As the Tribunal said in J&P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S); (2006) 45 SR (WA) 242 at [38]: … [T]he Tribunal's obligation to minimise the costs to parties will be reflected in the costs assessed by the Tribunal as recoverable. That approach reflects an expectation that representatives of parties before the Tribunal will approach a proceeding in a way that minimises costs to their clients. If clients choose to approach proceedings before the Tribunal in a way which substantially increases costs for them, it will be a rare case where that increase in costs will be recoverable through a favourable costs order. 51 The Tribunal assesses costs 'in a relatively robust fashion', consistently with its statutory objectives: Marvell Investments Pty (Page 23)
Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) at [49]; see, for example, Law and Town of Vincent [2006] WASAT 263 (S). Generally speaking, 'any award should be approached in a broad fashion and should not have to descend into [an] inquiry into small items of expenditure': Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302; (2008) 60 SR (WA) 194 at [67]. 66 The approach by the Board to the assessment of costs is to look at what has been charged by its solicitors and counsel, and to apply a reduction in the amount sought to be recovered in relation to solicitors' costs. Other than that, in its submissions, the Board suggests that the reduction takes account of any excess in the charge rates over that that might be permitted under the Legal Practitioners (State Administrative Tribunal) Determination 2010 on a solicitor/client basis, and any potential double recovery of GST, the basis for the reduction is not clear. In our view, in matters of this nature, the preferable approach is not to look at what has actually been charged to the client, but rather what reasonable allowance should be made, taking a robust and broad brush approach, for the work necessarily done to bring the proceedings to a conclusion. That is the approach taken by the Tribunal in Woollard, and, with respect, we consider it a sound basis to approach the assessment of the quantum of costs in vocational matters. It is important that the policy behind the practice of the Tribunal in relation to costs in vocational regulatory matters does not lead to excessive and crushing costs claims beyond what a practitioner might reasonably expect to have to meet if the application against him or her is ultimately successful. 67 On that basis, we consider that reasonable costs should be allowed as follows: |