Medical Board of Australia v Henderson
[2011] QCAT 90
•24 March 2011
| CITATION: | Medical Board of Australia v Henderson [2011] QCAT 90 |
| PARTIES: | Medical Board of Australia (Appellant) |
| v | |
| Dr Peter Henderson | |
| APPLICATION NUMBER: | HPF014-09; HPA008-09 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 9 February 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President Mrs Ann Langley |
| DELIVERED ON: | 24 March 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The parties may file in the Tribunal and serve on each other submissions regarding the issue addressed in paragraph [33] of the reasons of 24 March 2011 by 4.00pm on 11 April 2011. |
| CATCHWORDS: | HEALTH PRACTITIONER – DISCIPLINARY PROCEEDINGS – sexual and inappropriate conduct towards female patients – where certain allegations admitted – where prior disciplinary history for similar offending – where parties jointly proposed cancellation and pre-conditions to re-registration and a prohibition on treating female patients if re-registered – whether that prohibition may be reviewed Health Practitioners (Professional Standards) Act 1999, ss 123, 240(1), 241(2)(j)(ii), 337 Lasrado v Medical Board of Queensland [2005] QHPT 5 Mitchelson v Medical Board of Queensland [2010] QCAT 571 |
REASONS FOR DECISION
The Medical Board of Australia alleges grounds exist for taking disciplinary action against Dr Henderson, a general practitioner. Although he denies much of the conduct alleged against him, Dr Henderson accepts disciplinary action is justified. Despite some significant differences between them about the allegations, both parties have asked the Tribunal to act on Dr Henderson’s admissions. The Board has not formally abandoned all the allegations Dr Henderson has not admitted, although that is the effect of its request that the Tribunal determine the matter on Dr Henderson’s admissions only.
Ultimately, whether or not to adopt that procedure is a matter for the Tribunal. The Board has filed statements which go to the allegations Dr Henderson denies. The Board frankly, and, I think, properly, concedes that, if those matters in dispute were proved against Dr Henderson it would have sought a higher penalty.
It is in the interests of the registrants who fund the disciplinary process for matters to be disposed of efficiently and cost effectively, as long as this does not undermine the objectives of disciplinary proceedings. They are to protect the public; to uphold standards of practice within the profession and to maintain public confidence in it.[1]
[1] Health Practitioners (Professional Standards) Act 1999, s 123.
In requesting the Tribunal accept the parties’ joint submission, the Board has taken into account the significant imposition on and likely trauma for each of the three complainants, were they to be cross-examined about personal matters. It is also the Board’s view that the penalty proposed by the parties adequately meets the objectives of disciplinary proceedings including, pertinently in this case, protecting the public. Having considered both the alleged and admitted conduct, I have reached the same view. I am satisfied that it is appropriate, in this case, to determine the proceedings on the basis of Dr Henderson’s admitted conduct.
The allegations made against Dr Henderson are that he engaged in sexual and inappropriate conduct towards three female patients; that he breached a requirement not to treat female patients without a chaperone; and that he provided an Information Sheet about the chaperone requirement that was false and misleading. He admits some aspects of the patient’s complaints and admits breaching the chaperone requirement and distributing a misleading Information Sheet.
In these reasons, the names of the patients have not been used, in order to preserve their privacy.
In June 2005, Dr Henderson gave voluntary undertakings to the Board as a result of a patient complaint (which is not before the Tribunal). That included a chaperone requirement. Dr Henderson admits breaching that undertaking.
During a consultation with a patient, RH, in August 2006, when he was subject to the undertaking, Dr Henderson admits that he undid the patient’s bra strap without her consent and for no clinical purpose. He told the patient he would administer a vaccination in her buttock and asked her to lower her pants about 5cm. He admits he squeezed her buttock, applying steady pressure to mask the pain of the injection he was about to administer. He discovered the needle was too short and administered the injection to her arm. RH pulled her pants up. Dr Henderson admits he then patted her on the buttocks.
In November 2006, RH complained to the Board. While investigating the complaint, the Board imposed a chaperone condition on Dr Henderson’s registration.
He agrees his conduct towards RH was inappropriate but denies it was sexual. The distinction that Dr Henderson seeks to draw in this context is elusive. Even accepting, generously, his version of the initial contact with the patient’s buttocks as having a clinical purpose, once Dr Henderson had determined he could not administer the injection to the buttocks there was no justification for further contact. The subsequent contact could not be regarded, reasonably, as anything but sexual in nature.
Between September 2007 and April 2009, Dr Henderson breached the chaperone condition on numerous occasions. On some occasions he did not have a chaperone present when he treated female patients. Other breaches related to his record keeping. The Board identified some 150 examples of his failure to properly complete the consent form (which had to be signed by both the patient and the chaperone). Dr Henderson asked a staff member at one clinic to sign as chaperone for consultations she did not attend.
During this period, Dr Henderson also provided patients with an Information Sheet which was false and misleading. It denigrated the (unidentified) complainant and sought to minimise or trivialise his own conduct.
Dr Henderson’s failure to observe the chaperone condition and his distribution of the misleading Information Sheet are very concerning. At the least, his conduct demonstrates a remarkable lack of insight about his situation; and at the worst, that he had little regard for the Board’s attempts to regulate his conduct during the investigation.
In April 2009 the Board received a complaint about Dr Henderson from another patient, SR. This complaint involved conduct in 2008 and 2009, while Dr Henderson was subject to the chaperone condition imposed after the Board received RH’s complaint in 2006.
SR consulted Dr Henderson in May 2008 and April 2009. On the first occasion, Dr Henderson admits he pulled down her bra, partially exposing her left breast, in order to look at a tattoo. He admits there was no clinical purpose for his conduct.
On the second occasion, Dr Henderson admits he engaged in sexual behaviour. He massaged the patient’s right arm and moved closer so that, on his account, her hand accidentally came in contact with his genitals. He admitted asking her if she could keep a secret and indicated a desire to have sex with her.
In May 2009, shortly after receiving SR’s complaint, the Board suspended Dr Henderson’s registration.
It is not clear when the third patient, RJ, complained to the Board. She alleged sexual conduct in the course of a pap smear performed on her by Dr Henderson in 2005. This allegation is denied entirely and the Board has not asked the Tribunal to determine that dispute.
Both patients against whom inappropriate or sexual conduct is admitted have spoken of the significant impact of Dr Henderson’s actions. He breached the trust they placed in him as their treating doctor, when they were vulnerable because of personal and health conditions. They are both still experiencing the effects of this some time after the incidents.
Regrettably, this is not the first disciplinary proceeding against Dr Henderson of this nature. In 2001, he was found to have acted inappropriately towards a female patient (SB) in July 2000. He questioned her about sexual matters, told her he was aroused by her and said he wanted to perform oral sex on her. His registration was suspended for three months and a chaperone requirement was imposed for 2 years.
Dr Henderson concedes that the conduct involving the patients SB (July 2000), RH (August 2006) and SR (May 2008 & April 2009) establishes a pattern of sexual behaviour or inappropriate conduct towards female patients.
There is no dispute, and could be none, that the admitted conduct establishes a ground to take disciplinary action.[2]
[2] Health Practitioners (Professional Standards) Act 1999, s 240(1).
Dr Henderson concedes cancellation of his registration is appropriate to denounce his conduct and to act as deterrence to others. The parties propose that Dr Henderson is precluded from applying for registration until 1 November 2014. While that is a little more than 3.5 years from now, Dr Henderson’s suspension commenced in April 2009. Effectively the penalty will mean that Dr Henderson will not have practiced for some five and a half years before he is eligible to reapply. It is a lengthy period and will result in an additional burden of establishing his competence to practice after such a lengthy period. I have taken into account the periods of cancellation imposed in cases involving like conduct in accepting that it is appropriate.[3]
[3]Medical Board of Queensland v Alroe [2005] QHPT 4 (sexual intercourse with a former patient on 4 occasions, exploited the former professional relationship – cancelled for 4 years); Medical Board of Queensland v Doolan [2001] QHPT 003 (sexual relationship with a patient, previous offence of the same nature – cancelled for 3 years); Lasrado v Medical Board of Queensland [2005] QHPT 5(sexual harassment and sexual behaviour towards 5 female patients, breaches of chaperone requirement including dishonestly altering records – cancelled for 3 years six months).
The parties have jointly submitted conditions that would have to be satisfied before Dr Henderson could seek registration and a condition the Board must apply if he is registered. They require Dr Henderson to undergo ongoing treatment, including psychotherapy, at his own expense, during the period of cancellation. Before he may reapply, he must provide a report from Dr Wainwright that states he is fit to practice and he must submit to an independent assessment by another psychiatrist. If he is registered, the Board will be required to impose a condition on his registration that he must not treat any female patients. The parties propose that he may not review that condition for 3 years from when it takes effect.
Dr Henderson has been treated by his psychiatrist, Dr Wainwright, since November 2009. Dr Wainwright did not diagnose any psychiatric disorder but considered Dr Henderson possesses emotional vulnerabilities which resulted in inappropriate behaviour during periods in his life when he felt alone and unsupported. Dr Wainwright considered Dr Henderson was always fit to practice medicine treating male patients but, initially, expressed the view that he should only treat female patients under chaperone. More recently he concluded Dr Henderson is now stable and fit to practice without any restriction. Appropriately, the parties have not pressed that view on the Tribunal.
Dr Henderson has demonstrated that, in his case, the chaperone regime is inadequate to protect female patients. The conduct against patients RH and SR occurred when he was subject to either a voluntary or imposed chaperone requirement. There have been cases involving more serious sexual conduct. Nevertheless Dr Henderson exploited the trust inherent in the relationship between doctor and patient and did so at a time he was subject to a regime intended to protect female patients from this very conduct.
He may well have been responding to his emotional vulnerabilities at the time, but this is not a case of conduct unchecked by intervention. He had already been disciplined for similar conduct in the past. He was in ongoing contact with the Board about a series of complaints in June 2005 and November 2006. He was in dispute with the Board about the conditions imposed in February 2007. He had consulted a psychiatrist, Dr Boulnois, about the stress he experienced as a result of the complaints. He was assessed by Dr Leggett, a psychiatrist, in 2007. Former disciplinary proceedings, later and ongoing intervention by the Board and consultations with psychiatrists all proved ineffective to prevent further offending.
Dr Henderson demonstrated his contempt for the Board’s protective regime by his conduct towards his patients, and also by his flagrant and apparently routine disregard for it in the course of his practice. He was required to record compliance with the chaperone condition and must have understood those records could, and would most likely, be audited. It was almost inevitable the breaches would be detected at some point.
He was willing to mislead patients by distributing an unacceptably worded Information Sheet. He sought to mislead the Board by trying to draw others into falsifying his chaperone records.
Dr Henderson’s recklessness does not appear to have been addressed by Dr Wainwright in his assessment. Dr Boulnois touched on this in his description of self–destructive and destructive patterns of behaviour. Dr Fredericks, a psychiatrist engaged by the Board, also diagnosed that Dr Henderson suffered no impairment but violated the accepted boundaries of the doctor-patient relationship during periods of stress because of his personality vulnerabilities.
There is nothing in the material placed before the Tribunal that gives me confidence now that Dr Henderson will be better able to deal with stress in the future without female patients being put at risk. A mandatory condition on his future registration preventing him from treating female patients is well justified in the circumstances.
The parties have proposed Dr Henderson be prevented from applying to review that condition of his registration until 3 years after it comes into effect. That holds out the prospect that, in time, Dr Henderson may practice medicine again and, perhaps, treat female patients. Currently, I have serious reservations about whether Dr Henderson should ever be allowed to treat female patients on any terms. I accept, in the future, Dr Henderson may be able to present cogent evidence to persuade the Tribunal that prohibition should be lifted.
However, I am not convinced the Tribunal has the power to make an order that would allow Dr Henderson to apply to the Tribunal to review that condition. There is no inherent power for the Tribunal to review its decisions. The scope for review for matters of this type is defined by the Health Practitioners (Professional Standards) Act 1999. Section 337 specifies the Tribunal decisions that may be reviewed. In imposing the requested condition, the Tribunal would be exercising the power conferred by s 241(2)(j)(ii) to set conditions that must be imposed on any future registration of a practitioner whose registration is cancelled by the Tribunal. It would appear that an order of that sort is not encompassed by the categories of decisions specified in s 337.[4]
[4] Mitchelson v Medical Board of Queensland [2010] QCAT 571 at [3].
As this issue did not arise in the course of the hearing, I invite the parties to provide written submissions before finalising the Tribunal’s decision. The parties agree that, upon this disciplinary matter concluding the related appeal proceeding (HPA008-09) should be dismissed. That will occur when orders are finalised in HPF014-09.