Medical Board of Australia v Gilliland (No 2)
[2014] QCAT 699
•25 November 2014
| CITATION: | Medical Board of Australia v Gilliland (No 2) [2014] QCAT 699 |
| PARTIES: | Medical Board Of Australia (Applicant) |
| v | |
| Dr Stephen Gilliland (Respondent) |
| APPLICATION NUMBER: | OCR251-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 10 June 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Dick SC Assisted by: Mr Murray Green Dr Glenda Powell Dr Sandra Congdon |
| DELIVERED ON: | 25 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | That the registrant is guilty of professional misconduct in terms of each paragraph of s 5 of the National Law The tribunal will take submissions in writing in respect of sanction. Such submissions to be delivered by 5 December 2014 |
| CATCHWORDS: | HEALTH PRACTITIONER – MEDICAL PRACTITIONER – DISCIPLINARY PROCEEDINGS – where the practitioner engaged in a sexual relationship with a patient – whether the practitioner has engaged in professional misconduct |
| Health Practitioners Regulation National Law (Queensland) s 5, s 138, s 196(1)(b)(iii), s 196(2)(a), s 196(4) Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66 |
| APPEARANCES AND REPRESENTATION: | Mr Geoffrey Diehm QC instructed by Ashurst Mr Richard Perry QC instructed by Moray & Agnew |
REASONS FOR DECISION
Introduction
The Medical Board of Australia has brought a disciplinary proceeding against the Registrant on the ground that he commenced and maintained a sexual relationship with the patient while she, her husband and her family were his patients.
At all material times the registrant was registered as a medical practitioner had been working as a general practitioner in a town in Queensland since 2005. From 2005 to 2007 he was employed as a general practitioner at a medical centre. In 2007 he set up his own medical practice and has been the regular general practitioner for the patient and her family since it opened. The patient had previously consulted the registrant at the former practice.
The patient has given evidence that from about October or November of 2007 until early 2011 she and the registrant conducted an extra marital sexual relationship. The registrant denies such a relationship and maintains that she was a patient and that the relationship was casual and non-sexual.
The patient says that at the time the Registrant was leaving the practice, he told her he had feelings for her. She says that shortly after the affair began.
On 27 February 2011 the patient confessed to her husband that she had been having an affair with the registrant. She had decided to end her marriage and had written a list of things to do to facilitate this. Her husband found the list which included a note with words to the effect of “write a letter to Steve”. He questioned her about the note and she told him that “Steve” was the registrant and that she had been having an affair with him. Over the following weeks the husband questioned the patient about the relationship. She told him, inter alia, that a number of medical appointments she had made with the registrant were for the purpose of sexual activity although she said sometimes they would discuss medical related issues as well. She told him that sometimes she would meet the registrant after hours, at his practice in order to have sexual relations. She told him that when she took her children to medical appointments she would ask the children to wait for her in the waiting room while she went back to her appointment. Instead she had sexual relations with the registrant. This did not happen on every occasion that the children were taken to see the registrant.
The husband searched the family home for family planners which were routinely kept near the home phone. He found them and he noted that there were symbols on the planner and questioned the patient about them. She explained the meaning of some of the symbols and how the symbols reflected aspects of the sexual relationship. The husband confronted the registrant on two occasions and he denied the affair. He also confronted the registrant’s wife and told her about the affair but she said that she did not believe him. After the confession he spoke to three of his wife’s friends all of whom told him they were aware of the affair.
As a result of her confession, the patient has seen the end of her marriage, she is estranged from some of her children and she has moved to another town.
The patient did not make the complaint. Her husband reported the relationship to the Australian Health Practitioner Regulation Agency (“AHPRA”). The patient had contact with AHPRA during the course of the investigation. She was asked by AHPRA whether the doctor-patient relationship with the registrant was balanced and whether the patient was exploited in any way. She said she was not exploited and she confirms that is still her attitude. At first she was a reluctant witness. She found the matter hurtful and she did not want to do anything that might cause hurt to the registrant.
In addition to the evidence of the patient, the Tribunal has had access to the family planner on which she says she recorded some of her contact with the registrant. In her affidavit she has explained symbols used to record the contact. There is no evidence that the entries constitute ex post facto reconstruction.
The Tribunal has also had access to a large number of records of telephone calls made from and received by various extensions at the registrant’s surgery. The records are not in dispute. The patient said she only ever rang the main practice landline (Ext 550) and that is corroborated by the records. It was accepted by the registrant that extension 550 could be answered by him in his consultation room. A receptionist at the practice, gave evidence. She said that prior to 2010, extension 550 would automatically go to an answering machine once the phone rang a number of times without being answered. After 2010 this would occur once the system was manually switched to voicemail. In any event she accepted that if extension 550 rang at any time it could be answered and, if necessary, the call put through to the respondent.
A summary has been prepared of the telephone calls. The patient says the registrant would sometimes ring her at home and they would chat and she says that during those discussions they would sometimes arrange times for her to go to the surgery to meet with him. She said she believed the relationship was more than just a sexual or physical relationship – there was an emotional and friendship aspect to the relationship as well.
One of the patterns that emerges with respect to the phone calls is a pattern of lengthy phone calls form the registrant’s extension 554 to the patient’s home between approximately 2.00 pm and 3.00 pm. The telephone records prior to January 2009 are Telstra records and Widelinx. The Widelinx bills show phone calls to the patient’s mobile from extension 554 but the Telstra records show contact with her home from extension 550. The Telstra records are not records emanating from the surgery, rather they record incoming calls received on her home phone. Evidence was given that the patient finished work at 2pm and that this time coincided with a break in appointments for the registrant.
The pattern of conduct of long telephone calls from the surgery to her home stretches from late 2007 to early 2009. The registrant’s position is that he was not responsible for phone calls to the home from extension 550 but there is no evidence from either of the receptionists or from the registrant’s wife that any of them had that telephone contact with the patient. There are individual instances where the registrant accepted that a call must have been from him notwithstanding it was recorded from extension 550. On 5 December 2007, there was a call made to her home phone shortly after a message was left for him to ring her. The return call lasted for almost 10 minutes. He conceded under cross-examination that it was likely he did return the call even though the Telstra records showed it was from extension 550.
The history of the long phone calls between about 2.00 and 3.00 in the afternoon is markedly consistent and fits the version of events given by the patient.
Another pattern which emerges from the telephone contact is that contact frequently occurred late in the afternoon. Sometimes the patient rang extension 550. It was accepted by him that phone calls to extension 550 could be answered by him in his consultation room. Calls made from her mobile to the surgery after 4.00 pm were often of short duration, a matter of seconds in most cases. There is also phone contact to her mobile from extension 554 after 4.45 pm, again of short duration. The patient says that this was an indication of how the relationship operated in a practical sense. The contact late in the afternoon would be to arrange for her to meet him at the surgery after surgery hours. It is difficult to find another explanation for such short calls. They cannot be explained as a discussion of medical matters.
In the end result the registrant could not explain the consistency between the patterns of contact nor could he comment on the inevitable conclusion that such a consistency was established. He could not explain the extensive contact between extension 554 and the patient’s home and nor could he explain the pattern of short calls to and from her mobile and the surgery late in the afternoon. His evidence is of a relationship which was not particularly close, much less intimate. In the Tribunal’s view, his account in relation to the phone calls is improbable.
During the course of the alleged sexual relationship the patient informed close friends of her relationship. Three of those friends have sworn affidavits and have not been cross-examined. Each of them confirms that she told them of the affair during its currency, their individual reactions to the knowledge and the name of the person with whom she was having the affair.
The patient has been comprehensively cross-examined. She accepted that the lock to the respondent’s consultation room was broken and she deposed that there was a part of the locking mechanism which he could remove. When she had a consultation with him he would usually put this removable piece back into the locking mechanism in order to manually lock the door. She said in her evidence that he did that each time “if there were going to be relations”. She acknowledged that if someone came in the room they would catch her and the respondent involved in a sexual act but she said “I suppose so but [indistinct] at the time you don’t think of things like that happening.” She said the lock got put into the door lots of times but she said the chance of someone coming in after hours was pretty slim but the door was locked as a precaution. It was put to her that one way to cause people not to be suspicious about a broken lock suddenly being locked would be to have the lock fixed. She said “I’m kind of not interested in locking doors at those times where we would meet up … I wasn’t thinking about locking or fixing locks on doors when we would meet up.”
A locksmith, gave evidence that he observed the lock to the respondent’s consultation room to be a reasonably common lock. It can be usually locked from the inside by a button (a “snib”). That snib was not present on his inspection. He obtained such a lock and deconstructed it to examine it. He said that if the snib was missing it would be possible to insert something with a diameter of 3mm into the hole where the snib should be in order to lock the door from the inside. However, this would be likely to cause damage to the lock which would be evident and there was no damage observed on inspection of the respondent’s lock. In cross-examination he agreed that whether or not the process would involve damage would depend on a number of things:
1. the nature of the object that was put into the hole;
2. the number of times it was done;
3. whether or not someone tried to open the lock from inside.
He agreed that all those matters would affect the likelihood of damage being occasioned.
In light of the patient’s evidence that she was not concerned with the process, it is open that the respondent purported to put something in the lock to put her at ease but did not actually do so.
Another criticism that has been made of her evidence relates to the allegation that she had sexual relations with the registrant at the hospital where she attended for treatment. The first criticism is that, according to her husband, she told him it occurred twice at the hospital whereas her evidence is that it happened once. This may have been his inaccuracy rather than hers. His questions took place over weeks and in emotional circumstances.
The second criticism is that such an event would be unlikely considering the public nature of the place.
The patient agreed that the hospital is quite a busy place. She said when it was time for her to see the doctor she was taken into a consultation room. It was put to her that she would be taken to a consultation bay but she insisted it was a room. She did not remember the specifics of what they did at that time. There has been emphatic criticism of her evidence in relation to this matter. The criticism relates to the risk involved. As she said “it was probably a bit silly and a little bit risky”. The criticism has to be seen in light of the fact that what is alleged here is an extra marital affair. Sexual relations occurred when the parties were available. The allegation is that none of the sexual relations occurred anywhere but in his surgery or the hospital. Risk taking must be a factor in any such relationship where the parties do not wish others to know of the relationship. The registrant worked at the hospital and would have a good working knowledge of the risk, if any, of being interrupted. The point is also taken that she does not describe the type of sexual activity that took place on that occasion. This does seem somewhat unusual but not decisive in the context of a three to four year relationship, which concluded over 3 years ago.
There has also been criticism of her evidence in relation to the alleged sexual activity that occurred at the time of her appointments or when the children had appointments and were waiting outside. The criticisms relate to the possibility of an odour, dishelvement or leakage as a result of the sexual contact. The other criticism relates to the possibility that the patient might be observed going into the surgery in the late afternoon. The patient accepted all these aspects carried risk but made it clear it was a risk she was prepared to take. The other criticism is that the patient’s inability to remember what was done to address these issues cast considerable doubt on her testimony. It should be remembered that the events happened up to seven years ago and, it appears, always in haste.
Evidence was called from the receptionists who worked for the registrant. The suggestion was that the receptionist always left after the doctor, who left straight after the last appointment, at about 4.30 pm. This position has been affected by the discovery of the phone records. Both receptionists worked part-time. In the period from January 2009 to December 2011, 698 calls were made from extension 554 on or after 4.45 pm and 298 after 5.00 pm. This means that the registrant must have been there at that time. Accordingly, it was not inevitable that he left the surgery before the receptionists.
In her second Affidavit, the patient gave a description of the registrant’s penis as having a freckle. An urologist who examined the registrant described a number of freckles. In the view of the Tribunal, the fact that the patient ventured to give such a description and was correct about a mark or freckle is supportive of her version. The fact that she did not notice as many marks as someone specifically examining the registrant for such markings does not materially affect her credibility.
The patient gave evidence of further sexual contact that occurred about a year after the affair was discovered by her husband. She was cross-examined as why she had failed to disclose this earlier. She said she had not disclosed it because she ‘was not proud of the fact that had engaged in sexual relation with (the registrant) again.”
In the registrants submissions, under the heading “An Unusual Case”, it is submitted that there has been no particularisation of specific occasions of sexual encounters other than with respect to the hospital. It is submitted that the Tribunal “should not proceed to accept general assertions that sexual activity took place” and “findings against (the registrant) should not be made unless there is said to be an evidential basis for concluding that on some particular occasion there was sexual activity between them”. This is not a case where it is alleged that isolated incidents of sexual activity occurred. The referral to the Tribunal alleges a “relationship”. In the view of the Tribunal, it is sufficient that the Tribunal accept the patient as being honest and reliable when she says there was a sexual relationship.
Issues of proof
In the case of this nature, the responsibility of proof rests with the Board. As to the standard of proof the Tribunal must bear in mind the observations of the High Court in Brigginshaw v Brigginshaw (1938) 60 CLR 336. That decision clearly recognises the need, in proceedings of this nature where the allegation is grave and the potential consequences so serious, for the civil standard to be reached on the basis of clear and cogent proof rather than on evidence on some lesser probative value.
Discussion
The Tribunal accepts the evidence of the patient as truthful, accurate and reliable. The cross-examination did not raise aspects which would cause the Tribunal to have any real doubts about her credibility and reliability. Her evidence is supported by a number of features:
· She told three of her friends during the course of the relationship and what she said to them is consistent with her evidence;
· the phone records show patterns which fit with her evidence as to the way in which the relationship was carried out;
· the planner notes while not consistent in every particular were nonetheless remarkably consistent;
· the inability of the respondent to offer any plausible explanation for the phone records and the patterns of phone calls;
· the fact that any explanation he has given is unconvincing and implausible;
· the telephone contact strongly supports the existence of an intimate relationship far beyond that described by the respondent.
Professional misconduct
The factual findings necessitate consideration as to whether the respondent has behaved in a way that constitutes professional misconduct. The term professional misconduct is defined in s 5 of the Health Practitioners Regulation National Law:
Professional misconduct, of a registered health practitioner includes-
(a) Unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b) more than one instance of unprofessional conduct that when considered together amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or of experience; and
(c) conduct of the practitioner whether occurring in connection with the practice of the health practitioners profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
The applicable guidelines are contained in a Statement on Sexual Relationships between Health practitioners and their Patients issued by the Medical Board on 22 February 2005. The section dealing with the relationship between health practitioners and patients states plainly that a doctor should not engage in sexual activity with a current patient (whether or not the patient has consented). To do so is to act substantially below the standard of conduct reasonably expected of a registered medical health practitioner of equivalent training or experience and it satisfies the definition that is contained in the Health Practitioners Regulation National Law (Queensland) hereinafter referred to as the National Law.
There is no dispute that the registrant treated the patient, her husband and children as patients.
His conduct, in these circumstances, is in breach of relevant ethical guidelines and falls below the standard of professional conduct expected by the public and his peers.
The Tribunal is satisfied that the registrant is guilty of professional misconduct in terms of each paragraph of s 5 of the National Law.
Sanction
The tribunal will take submissions in writing in respect of sanction. Such submissions to be delivered by 5 December 2014
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