Medical Board of Australia v Yasin
[2011] QCAT 300
•28 June 2011
| CITATION: | Medical Board of Australia v Yasin [2011] QCAT 300 |
| PARTIES: | Medical Board of Australia (Applicant) |
| v | |
| Dr Shariq Ghulam Yasin (Respondent) |
| APPLICATION NUMBER: | OCR167-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 19 May 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President Assisted by Assessors:- Dr Sandra Dunglison Dr Stephen Pozzi Mr Glen Lamperd |
| DELIVERED ON: | 28 June 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Dr Yasin’s registration is suspended for a period of 2 years. That sanction is suspended after a period of 12 months provided that Dr Yasin complies with the following conditions and does not face further disciplinary proceedings for a period of 3 years from the date of this order; 2. Prior to re-entering practice, Dr Yasin must demonstrate that he has successfully completed a professional development activity at a tertiary centre (to be approved by the Board in advance) which focuses upon ethical decision making and boundary violations for health professionals; 3. Within 2 years from the date of this order, Dr Yasin must undertake and successfully complete a minimum of 12 months professional supervision with a Board approved psychologist/psychiatrist focusing on boundary violation. Supervision is to be conducted at a frequency of 1 session per month with a session duration of at least 1 hour; 4. Dr Yasin must authorise the supervisor to provide progress reports to the Board on a quarterly basis and upon supervision ceasing for any reason; 5. Dr Yasin must meet the costs of complying with these conditions; 6. Dr Yasin must bear the Board’s costs of and incidental to these proceedings as agreed or as fixed by the Tribunal after assessment on the standard basis against the District Court scale. |
| CATCHWORDS: | HEALTH PRACTITIONER – DISCIPLINARY PROCEEDINGS – sexual and inappropriate relationship with a female patient – where allegations admitted – where there was extensive co-operation in the investigation and proceedings – where voluntary undertakings entered into – where Tribunal accepted that this was the first transgression of this nature – where further ethical training undertaken before the hearing – where parties jointly proposed a sanction Health Practitioners (Professional Standards) Act 1999, ss 123, 124, sch Medical Board of Queensland v Alroe [2005] QHPT 4 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr McCowan, solicitor, of McInnes Wilson Lawyers Pty Ltd, for the Board |
| RESPONDENT: | Ms J Farr, counsel, instructed by Minter Ellison Lawyers, for Dr Yasin |
REASONS FOR DECISION
Dr Yasin is a psychiatrist. These disciplinary proceedings follow from his inappropriate and sexual relationship with a female patient whom he was treating for Bi Polar Affective Disorder in the course of his duties at a hospital in Brisbane. During Dr Yasin’s first consultation with the patient in January or early February 2008, he gave the patient his mobile phone number. He agrees that his leg came into contact with the patient’s during that consultation.
Shortly afterwards there commenced a series of telephone calls between Dr Yasin and the patient which extended over an eight month period and which went beyond therapeutic matters.
In March 2008, Dr Yasin agreed to the patient’s request to provide her with a letter advising her medical condition was improving. She needed this in order to continue with her studies and to improve her prospects of securing a scholarship. The letter provided the context for their first meeting outside the hospital or medical centre. This took place about 2 months after he had started treating the patient.
By then, Dr Yasin was aware she was attracted to him. Rather than post the letter to her or leave it at reception for her to collect, he arranged to give it to her personally. They met in a shopping centre car park. She hugged him and he initiated kissing. They were intimate in this way for some minutes. The two met again at the same car park and engaged in a similar level of intimacy on two or three more occasions over a 4 month period.
When Dr Yasin went to Sydney for a course, the patient arranged to be in the same city. They met and had sexual intercourse. When they returned to Brisbane there were some further meetings; however, Dr Yasin was then attempting to bring the relationship to an end.
He was concerned about the impact this might have on her because her condition was deteriorating. She had stopped attending scheduled appointments at the clinic. He called to inquire after her on a number of occasions. At the end of 2008, the patient was involuntarily admitted to the hospital under his care. In January 2009 the patient’s complaint about Dr Yasin’s conduct was taken to the Board.
In March 2009, Dr Yasin voluntarily gave undertakings to the Board which placed chaperone conditions on his practice. He has complied with them for more than 2 years. In May 2010, before the Board had filed these proceedings, Dr Yasin provided a statement which admitted most of the facts recited above. He made the balance of the admissions in other documents filed in these proceedings. The Board submitted that Dr Yasin’s co-operation was extensive; the Tribunal should give that due regard in formulating the sanction.
There is no contest between the parties about how the conduct should be characterised. It clearly falls substantially below the conduct that would be expected of Dr Yasin by the public and his peers. As such it is unsatisfactory professional conduct. The conduct is discreditable to Dr Yasin’s profession and also constitutes misconduct in the practice of his profession.[1]
[1]Health Practitioners (Professional Standards) Act 1999, s 124(1)(a); sch def of unsatisfactory professional conduct paras (a), (d), (e).
Relationships such as this one are improper and unethical. The predecessor to the Board, the Medical Board of Queensland, adopted a Statement on Sexual Relationships between Health Practitioners and their patients.[2] It provides that all forms of sexual behaviour between a health practitioner and a current patient are improper and unethical.[3] Whether the patient consents and whether actual harm is caused are not relevant to that direction, although they may well bear upon the sanction. The position adopted by the Royal Australian and New Zealand College of Psychiatrists is that such relationships are never acceptable and constitute unethical behaviour.[4]
[2] Adopted in February 2005.
[3]Statement on Sexual Relationships between Health Practitioners and their patients at [3.1].
[4]The Royal Australian and New Zealand College of Psychiatrists Ethical Guideline no 8 at [3].
This is true of all health professionals but takes on particular significance in the psychiatrist patient relationship, because of the patient’s vulnerability and the heightened potential for them to develop a dependency on the practitioner. The RANZCP guideline states:
In psychiatry there is an even stronger obligation to avoid exploitation because of the more intensive therapeutic relationship with patients, and the powerful emotional forces often released during treatment.
The Tribunal is concerned by how quickly the relationship developed. Dr Yasin showed indications that he would breach the proper boundaries of the psychiatrist patient relationship during the very first consultation. He had physical, albeit somewhat ambiguous, contact with the patient and gave her his mobile phone number. He knew he was dealing with a patient who had a history of treatment for bi polar affective disorder.
His conduct could be seen as predatory, a matter of grave concern to the Tribunal. Dr Yasin has been a psychiatrist for 14 years. There is no suggestion of any other disciplinary matter of this nature. Dr Yasin has sworn a statement that he has never engaged in such a relationship with any other patient and the Board is content to act on that statement. Of course, if it is subsequently found not to be true, Dr Yasin will face serious consequences. There is no evidence that it is not true. The Tribunal has approached the matter on the basis that this is the first time Dr Yasin has transgressed.
It is evident the relationship was consensual, although that is no defence. Dr Yasin allowed the relationship to continue, because he was concerned about the impact on her condition if he brought it to an end. This vividly demonstrates one of the risks that the bar on such relationships is designed to avoid. His concern about her welfare should have prevented him from entering into the relationship in the first place.
In some cases of this nature, the practitioner’s registration has been cancelled.[5] However, that result is not inevitable.[6] Both parties submitted that, in the circumstances of this case, suspension is an appropriate response.
[5]Medical Board of Queensland v Quan [2006] QHPT 005; Medical Board of Queensland v Alroe [2005] QHPT 004; Medical Board of Queensland v DAP [2008] QCA 44.
[6]Medical Board of Queensland v Doolan [2001] QHPT 003; Medical Board of Queensland v Karthigasu [2006] QHPT 6; Medical Board of Australia v Nandam [2011] QCAT 65.
The distinction between cancellation and suspension is an important one. A practitioner whose registration is cancelled must reapply to be registered and, in doing so, must satisfy the Board of their competence and fitness to practice at the time of registration. If a practitioner’s registration is suspended, their status is restored once the suspension term has been served. The Tribunal has decided to adopt the course urged upon it for the following reasons.
Most significant is the degree of co-operation in the investigation and in these proceedings. The Board indicated it would have sought cancellation if Dr Yasin had contested these allegations. Dr Yasin admitted the relationship, and gave a sworn statement to that effect, even before these proceedings were commenced in the Tribunal. That ensured that his former patient was not burdened, either by his denial or by having to provide sworn evidence. She did not face the anxiety that the prospect of having to give oral evidence would, undoubtedly, have created. The Tribunal accepts this indicates Dr Yasin’s genuine concern for his patient’s well being and his full acceptance of responsibility for his conduct.
His cooperation also reduced the Board’s costs of investigating and bringing these proceedings. Those costs are derived from the registration fees paid by members of the profession generally.
Dr Yasin has demonstrated his ability to abide by conditions imposed on his practice as a psychiatrist. He voluntarily gave undertakings which included a chaperone condition. He has complied with them for more than two years. The Tribunal takes that into account as one aspect of the penalty for his conduct.
He has completed a two day workshop about safe professional boundaries. Although some training about this is jointly proposed as a sanction, Dr Yasin has no expectation that the workshop will satisfy the Board’s requirements for further ethics education.
It seems that Dr Yasin’s marriage was under strain when this conduct occurred. That does not excuse it, but gives it some context. He has taken action to address issues in his marriage.
The Tribunal also notes that Dr Yasin’s eldest daughter has serious health problems. These presented after the relevant events and do not explain his conduct. Nevertheless, the further strain within the family suggests Dr Yasin may be more affected by the sanction than might otherwise be the case. That is a relevant factor in exercising the Tribunal’s discretion.
The purpose of disciplinary proceedings is not punitive, although that might be the effect of the sanction. The objectives are to maintain professional standards; maintain public confidence in the profession and to protect the public.[7]
[7] Health Practitioners (Professional Standards) Act 1999, s 123.
The sanction jointly proposed by the parties will suspend Dr Yasin’s registration for 2 years but provides that, after 1 year, the penalty will be suspended for a further year, provided Dr Yasin complies with conditions regarding further ethics education and professional supervision. Dr Yasin has agreed to pay the Board’s costs.
With one change, the Tribunal is satisfied the proposed orders meet the objects of disciplinary proceedings. The change relates to the period for which Dr Yasin will be at risk of the further 1 year suspension being activated (the operational period for the suspended sanction). The effect of the orders proposed by the parties is that the operational period will be 2 years from the date of these orders. The Tribunal does not consider that is adequate.
Lifting a suspension before its term ends is a generous exercise of discretion in the practitioner’s favour. The Tribunal’s orders impose a 3 year operational period. The effect of the orders is that Dr Yasin will not practice for 1 year and will be at risk of the remaining 1 year suspension being activated for a further 2 years after it has been lifted, effectively a period of 3 years from these orders during which Dr Yasin is subject to sanction for his conduct.
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