Medical Board of Queensland v Martin

[1998] QSC 230

IN THE MEDICAL ASSESSMENT TRIBUNAL

No. 6 of 1997.

Fryberg J

Dr J Lawrence and
Dr A B Biggs (Assessors)

[Medical Board of Queensland v. Martin]

BETWEEN:  

THE MEDICAL BOARD OF QUEENSLAND
  Prosecutor

AND:

GARY RAYMOND MARTIN
  Respondent

CATCHWORDS:     MEDICAL PRACTITIONERS - Discipline - Misconduct in a professional respect - Disciplinary punishment - Relevant considerations - Conduct of patient - Previous decisions - Question of fact or law.

Counsel:Mr R Perry for the prosecutor

Mr D Tait for the respondent

Solicitors:Gilshenan & Luton for the prosecutor

Tress Cocks & Maddox for the respondent

Date of hearing:           17-18 August 1998

REASONS FOR  JUDGMENT

Judgment delivered 27 August 1998

On 26 June 1997 the Medical Board laid two charges against the respondent.  Incorporating subsequent minor amendments, they were [that you]:

“1.a Medical Practitioner registered pursuant to the Act were in the opinion of the Board guilty of misconduct in a professional respect in that on a date unknown between the 1st day of May 1995 and the 31st day of December 1995 you did supply to Louise Antoinette Levi a quantity of drugs namely Fluoxetine Hydrochloride (Prozac) (20mg x 14) and Dothiepin Hydrochloride (Prothiaden)(75mg x 15) and suggested to her words to the effect that if she wished to commit suicide the best way to do so would be to take the complete quantity of the said drugs.

2.a Medical Practitioner registered pursuant to the Act were in the opinion of the Board guilty of misconduct in a professional respect in that between the 1st day of January 1983 and the 28th day of February 1997 you did commence and maintain a sexual relationship with a patient of yours namely Louise Antoinette Levi.”

On the second day of the hearing, counsel for the Board informed the Tribunal that it would not proceed further with the first charge.  As it was extremely doubtful whether the evidence available on that charge would have supported it, that was a very proper decision.  That charge must be dismissed. 

At the same time, the Board was, without objection, granted leave to amend the dates alleged in the second charge to “between the 1st day of July 1983 and the 28th day of February 1985”.  The respondent then admitted his guilt on that charge and the Tribunal found accordingly.  The only issue which remains for decision is what disciplinary punishment should be ordered. 

The facts

Dr Martin was born in 1945 and graduated in medicine from the University of Queensland in 1968.  From 1970 until 1975 he worked as superintendent at two provincial hospitals in Queensland.  In 1979 he established himself in general practice at Ashmore and in 1981 he became a partner in a group practice in the same area.  One of his partners in that practice was Dr J  H Flynn. 

In August 1982, the complainant, Louise Antoinette Levi, was seen at the practice by Dr Flynn.  It is unclear whether this was her first visit to Dr Flynn.  Her medical history card, which begins with that consultation, shows her to have been 33 years of age and separated from her husband.  She was complaining of fever, a cough and headache.  On 20 January 1983, she again went to the practice, and this time, she saw Dr Martin.  She told him that her husband had walked out a month previously for another woman.  She said she wished to start taking an oral contraceptive again, having been off it for three years.  She also complained that she was sleeping poorly.  She was given a prescription for the pill and also for a sedative called Lexotan.  She was at that time apparently in a state of some distress.  Either at this consultation or subsequently, Dr Martin told her that his marriage had broken down in November 1982 and his wife had asked him to leave the matrimonial home.

About four months later, Ms Levi again consulted Dr Martin.  She complained that for the previous two days, she had suffered pain under her right breast.  Dr Martin diagnosed pleurodynia and prescribed a drug called Capadex. 

On Monday, 4 July 1983, Ms Levi consulted Dr Martin for the third time.  She complained of  tachycardia and also asked for a further prescription for her oral contraceptive.  She said she had stopped smoking three weeks earlier and had also stopped drinking coffee.  Dr Martin recorded her weight (56.8 kilograms), blood pressure (117/79) and heart rate (82).  I am advised by my assessors that the blood pressure and heart rate recorded are within normal limits.  Dr Martin gave her the prescription and reassured her. 

It was common ground that the first social outing involving Dr Martin and Ms Levi occurred in early July 1983.  Ms Levi thought it was on a Thursday, which would make it either 7 or 14 July.  It was also common ground that the outing occurred as a result of a telephone call which Dr Martin made to Ms Levi.  However in other respects, there were significant differences between the participants in regard to what happened.

Ms Levi swore that in approximately May or June 1983, Dr Martin commenced telephoning her at home at night, and that he asked her to go out with him and have a relationship with him.  She was, she said, “totally shocked”.  Her evidence continued:-

“ I said, ‘It’s unethical for doctors - isn’t it unethical for doctors to take out their patients?’  And I said I was not interested in going out with him, because my marriage had just broken up.  I was not interested in going out with any man whatsoever.  And I was quite rude to him on the phone.  I even said to him, did he have his own teeth.  I said I was not interested in men, that I was even considering joining an nunnery, because I was just fed up and I was not interested in going out with anybody, let alone him, and I thought it was wrong that he should ask me out.

Was there any response from him to that? -- Oh, he kept on and on for ages talking to me.” 

She said that although she was not agreeable to going out with him, Dr Martin continued to telephone her; and as she was very vulnerable and lonely at the time, she eventually agreed to go with him in July 1983, “and consequently a sexual relationship developed.”

Dr Martin denied telephoning Ms Levi in May or June 1983 and asking her either to go out with him or to have a relationship with him.  He said that he telephoned her in early July 1983 and asked if she would attend a show at Seagulls Club at Tweed Heads as part of a foursome.  It was, he said, a lengthy conversation, about three hours.  He swore that they attended the show with another couple, a Mr Ray Bristow and his girlfriend, on 28 July 1983.  In cross-examination Ms Levi agreed they had been with other people - she thought another two couples.  Dr Martin said that it was not his intention in asking her out to see her after the group outing. 

I reject the version provided by Ms Levi.  Overall, I did not find her a satisfactory witness.  She did not listen carefully to questions; she seemed anxious to communicate to the court information thought out well in advance; and she was prone to hyperbole.  Some of the things she claims to have said in that conversation were inconsistent with subsequent events.  I prefer the version given by Dr Martin.  However I should make it clear that I do not accept his evidence in its totality, nor totally reject that of Ms Levi. 

Dr Martin’s evidence of events after the show at Seagulls Club was unchallenged.  He deposed:

“(iii)We returned to Ray Bristow’s unit for coffee after the show.  As we sat in my car waiting for him to arrive, Ms Levi cupped my face in her hands and kissed me very passionately.  I was not expecting such a show of affection.  I then drove Ms Levi home after leaving Mr Bristow’s unit to her home.  She asked me to come in for coffee and left me in no doubt that she was very attracted to me and wanted a permanent and stable relationship.  However, Ms Levi did not wish to marry again.  At this time she informed me she had been married once.  Several years into our relationship she revealed to me that she had been married not once but twice before.”

It was common ground that Dr Martin and Ms Levi next saw each other on the following Saturday night.  It was also common ground that they then spent the night together and had sexual intercourse.  Dr Martin alleged that they went out together socially, and at her invitation returned to her house.  There she seduced him and he spent the night with her.  Her version was as follows:

“That Saturday night I had worked all day in a restaurant as a waitress for friends of my mother.  I was working on week-ends and during the week working for solicitors, and on week-ends working in a restaurant and on that Saturday I was working all day and I didn’t get home until about 11 or 12 that night.  And when I got home I was quite stunned to find Dr Martin’s car parked at the front of my house.  I was absolutely filthy dirty.  I’d been working in a restaurant all day.  And he came up to the house.  I let him in and I said, ‘Excuse me, I’m going to have to go and have a shower and get changed,’ because I had  just come home from work.  We sat and talked for a while and he did stay the night.”

I find her version of this occasion generally the more convincing.  It was common ground that from that night on, they maintained a sexual relationship.

From July 1983 until February 1985, Ms Levi consulted Dr Martin as her general practitioner on a further nine occasions.  Two visits related to skin defects.  At another, on 26 August 1983, a breast augmentation operation was discussed.  Dr Martin referred Ms Levi to a plastic surgeon and the operation took place on 15 September.  From September to December 1983, Ms Levi was in an emotionally unstable situation.  She saw Dr Martin on 6 September to  discuss her difficulty in trying to forget her marriage and her problems with her husband.  She told him that she usually broke down into tears whenever they met.  She said she could not remember a single good time together in five years of marriage.  Dr Martin referred her to a book called “Your Erroneous Zones”, a self-help book relating to stress management.  On 21 September Dr Martin recorded that Ms Levy was much happier and was handling confrontations with her husband much better; but on 4 December his note read:

“CRISIS ++

DEPRESSED +

SUICIDAL

can’t handle life any more

can’t talk to anybody

discussed problems”.

The remaining consultations dealt with gynaecological matters or constipation.

In February or March 1985, Dr Martin and Ms Levi commenced to live together as man and wife.  They continued to do so for at least seven years.  Dr Martin tried to suggest that the de facto relationship began as early as July 1983, but I reject that evidence.  While it lasted, the relationship was both torrid and tempestuous.  Both parties engaged in sexual fantasy and voyeurism, though each tried to paint the other as the prime mover in these activities.  I doubt if any such distinction should be drawn.  Ms Levi was, I find, a very jealous partner, but I suspect that Dr Martin gave her abundant cause for jealousy.  In 1987 they purchased a home at Palona Place, Ashmore.  Dr Martin contributed $69,000.00 of the purchase price of $115,000.00, and Ms Levi contributed the balance.  Dr Martin provided her with a smart car, although her old car was used as a trade-in.  During the 1990s they separated and came together again on several occasions.  It seems that from this time onward, Dr Flynn replaced Dr Martin as Ms Levi’s general practitioner.  In 1992, Dr Martin transferred his half interest in the home to Ms Levi.  Her evidence was that there was no particular reason for this; that he simply offered to do it and she accepted.  Dr Martin said that in December 1991, during one of their worst arguments, Ms Levi threatened  that if he did not sign over his share of the house without payment, she would go to the Medical Board and inform them that he had been having relationships with patients.  He said that although this was quite untrue, such an action could have ruined his career.  Faced with that threat, he said, he agreed to her demands.  I accept his evidence that he transferred that interest because of such a threat.  I make no finding as to whether there was any truth in the allegation that he was having affairs with patients.  The matter was not thoroughly ventilated before me and to make a finding would be invidious.  Shortly thereafter, Ms Levi faked a suicide attempt, initially deceiving Dr Flynn and Dr Martin.  Despite living in separate residences, she and Dr Martin continued to see each other, and sexual relations continued.

Toward the end of 1994 Ms Levi decided to go overseas on the advice, she said, of her psychologist.  She went to Italy for some six months.  To finance the trip, she received a total of $20,000.00 from Dr Martin.  Their versions differ as to the circumstances.  Ms Levi did not refer to the money in her affidavit, but in cross-examination she said simply that he gave her the money.  She asserted that before this happened, she had found him in a compromising position with a patient, had told him in front of the patient that she was going to the Medical Board, had reported him to the Medical Board and had told him of that fact.  Dr Martin claimed that she sought a loan of $10,000.00 and shortly afterwards a further loan of $10,000.00, which he gave her on the basis of her statement that she intended to sell their home when she returned and pay him back.  He said she did not tell him that she had reported him to the Medical Board until after he provided the money; and that none of the money had been repaid.  He said (and the Board did not contradict it) that she apparently went to the Board shortly afterwards and withdrew her complaint.

I doubt if either version represents the truth.  Due to the course taken in the evidence, the matter was not pursued to finality and I should make no finding, particularly since criminal conduct might conceivably be involved.  The undoubted facts are that Ms Levi received $20,000.00; went overseas; and did not pursue her complaint for three years.  After her return to Australia in 1995, Ms Levi continued to see Dr Martin.  Sexual activity continued but they did not cohabit.  Dr Martin claims he was afraid that if he broke off the relationship, she would pursue her complaint to the Medical Board.

In February 1997, Ms Levi asked Dr Martin to do a pap smear for her and check her breasts.  He agreed to do so.  In the course of the examination he drew her attention to a number of spots on her chest and abdomen.  He said that if treated with carbolic acid, they would in due course turn brown and peel off.  He did so treat them, but Ms Levi asserts that he gave her this treatment without her consent.  She says that he gave her a cream to stop the itch but that this subsequently brought her out in a horrendous rash.  She says that the spots did not disappear, but turned into large brown stains.  She says that she subsequently went to a skin specialist who said that the marks would take up to two years to disappear.  Dr Martin says that the marks appeared no worse  than the original spots themselves.  Less than two months later, Dr Martin received a letter from Ms Levi’s solicitors demanding $50,000.00 as compensation for his treatment of spots on her body.  The letter threatened that in the absence of his agreement to settle her claim for that figure, action would be commenced within 14 days.  He says (and Ms Levi denies) that thereafter she telephoned him and demanded that he pay her $50,000.00 or else she would report him to the Medical Board; and that a few days later she rang back and said that she wanted to see him “bankrupt, deregistered and run of the country [sic]”.  Ms Levi did in fact contact the Medical Board in May 1997, and the present charge was brought the following month.  She denied that contacting the Board was done in the context of any demand for money.  However, asked why she did then contact the Board, she responded:

“Because I was tired of him doing things to me and I just thought that he should - he had done so many things to me over the years and I thought that I should report him to the Medical Board.”

I find that answer quite unconvincing.  However, in view again of the incomplete state of the evidence, I will not attempt to resolve the conflict regarding the alleged conversation.  In my view, the appropriate penalty can be decided without doing so.  It is implicit in the way in which counsel for both parties before me conducted the matter that the parties are of the same view.

Misconduct in a professional respect

On behalf of the Board, Mr Perry submitted that the Tribunal should order the erasure of Dr Martin’s name from the register.  He referred to a number of cases in which relevant principles are discussed.  He relied first on De Gregory v.  General Medical Council[1].  He cited the following passage from that case:

[1][1961] A.C. 957.

“A doctor gains entry to the home in the trust that he will take care of the physical and mental health of the family.  He must not abuse his professional position so as, by act or word, to impair in the least the confidence and security which should subsist between husband and wife.  His association with the wife becomes improper when by look, touch or gesture he shows undue affection for her, when he seeks opportunities of meeting her alone, or does anything else to show that he thinks more of her than he should.  Even if she sets her cap at him, he must in no way respond or encourage her.  If she seeks opportunities of meeting him, which are not necessary for professional reasons, he must be on his guard.  He must shun any association with her altogether rather than let it become improper.  He must be above suspicion.

It was suggested that a doctor, who started as the family doctor, might be in a different position when he became a family friend; his conduct on social occasions was to be regarded differently from his conduct on professional occasions.  There must, it was said, be cogent evidence to show that he abused his professional position; it was not enough to show that he abused his social friendship.  This looks very like a suggestion that he might do in the drawing room that which he might not do in the surgery.  No such distinction can be permitted.  A medical man who gains the entry into the family confidence by virtue of his professional position must maintain the same high standard when he becomes the family friend.

Such being the standard required of a doctor, their Lordships think that the Disciplinary Committee may well have thought an improper association existed between Dr de Gregory and Mrs Round before she took her name off his list.  His frequent visits to the house when the husband was not there, coupled with the fact that Mrs Round became fond of him and for that very reason took her name off his list - which must have been to the doctor’s knowledge but it was not to the husband’s knowledge - is quite sufficient evidence, without more, from which an improper association may be inferred between them whilst she was his patient.  That would by itself be ground on which the Disciplinary Committee could hold him guilty of infamous conduct in a professional respect.  But in as much as the findings of the Disciplinary Committee do not specify the date when the improper association started, their Lordships will approach the case on the footing that it only started after December, 1958, when she took her name off the list.  This does not excuse him.  He gained his access to the home in the first place by virtue of his professional position.  Afterwards, although the wife ceased to be on his list, he still had access to the home so as to attend Round and the children, if called upon.  It was an abuse of his professional relationship with the husband and father for him to enter upon an improper association with the wife and mother of the family.  It was infamous conduct in a professional respect, even though she herself had ceased to be his patient.

It was said that Mrs Round set her cap at Dr de Gregory and that he was caught in a spider’s web.  Mrs Round indeed admitted that she deliberately set out to seduce Dr de Gregory and succeeded in her efforts.  Assuming this to be true, it could afford him no answer.  It takes two to make and maintain an improper association of this kind and it ill becomes the man to blame the woman for it.  The doctor must resist temptation, not succumb to it.”[2]

[2]Ibid at pp.965-6.

He submitted that the concluding sentence was equally apposite now as it was at the time of that decision, and that it meant that the conduct of the patient was a relatively minor consideration.

In 1959, Dr de Gregory was some 54 years of age.  His wife had died a little over a year earlier.  For over eight years, since their marriage in fact, John and Sheila Round had been his patients.  Their three children were also his patients.  He was a friend of the family.  In the latter half of 1958, Mrs Round became fond of Dr de Gregory.  For this reason, she had her name removed from his list of patients in November 1958.  She did not tell her husband she had done this, and he and the children remained patients of Dr de Gregory.  Thereafter, as is mentioned in the above quotation, she deliberately set out to seduce Dr de Gregory, and she succeeded.  Sexual intercourse began in July 1959 when she was about 29 years of age.  She left her husband and children toward the end of that year and commenced living with Dr de Gregory.  The Rounds were divorced the following year and thereafter she married Dr de Gregory and had his child. 

It is tempting to dismiss the Board’s submission on this point by distinguishing De Gregory on the ground that part of the ratio of the case is the fact that Mr Round and the children were patients at the time of the sexual relationship, although such a distinction would be inconsistent with the decision of the Privy Council three years later in McCoan v. General Medical Council[3].  To do so, however, would be to fall into the same methodological error as in my judgment infects the submission itself.  The passages in the judgment cited on behalf of the Board simply do not, in my view, embody propositions of law.  They are essentially findings of fact.  Perhaps they are to some degree facts of which courts or tribunals having jurisdiction in disciplinary cases will take judicial notice - that I need not decide.  However they be proved, they are in my view findings of fact as to what are proper and improper standards of conduct for medical practitioners at a given time.  It is therefore wrong in principle to treat them as authoritative in subsequent cases.  Whatever evidentiary value the statements in De Gregory may have, they are neither persuasive nor binding propositions of law.  Further, whatever evidentiary value they might have had in 1961, I venture to suggest that today they must be regarded with extreme care and perhaps some scepticism.  Times have changed.

[3][1964] 1 W.L.R. 1107.

It is true that in Re a Medical Practitioner, Dowsett J.  described the passage quoted above as “the most authoritative statement of principle” to identify with precision the aspects of conduct of this kind which are said to be objectionable[4].  Nonetheless, his Honour then proceeded to enunciate five important differences between the circumstances surrounding the doctor and patient relationship in Australia in 1993 (the year of his decision) and those obtaining in England in 1959 as reflected in the passage quoted.  His Honour said:

[4][1995] 2 Qd.R.154 at p.161.

“Firstly, it would be inappropriate to base any current assessment of impropriety solely upon a medical practitioner’s access to the home.  Although home visits are  not unknown, it is common knowledge that the vast bulk of treatment is now done in the surgery.  Secondly, modern concepts of egalitarianism militate against assessing impropriety upon the assumption that the medical practitioner is automatically in a superior social or economic position.  Thirdly, it is inappropriate to assess impropriety upon the assumption that a woman is socially, morally or intellectually less well-equipped to deal with the emotional aspects of life than is a man.  Fourthly, our society does not regard adultery with quite the same horror as prevailed in the 1960s.  Fifthly, although a husband might complain about a doctor who seduces his wife whilst treating her or the family, the wife also has her own, independent basis of complaint.”[5]

[5]Ibid at p.162

Then, after referring to more modern descriptions of a practitioner’s duty in both the majority and minority judgments in Richter v.  Walton[6], his Honour distilled his views into 18 numbered paragraphs which, he said, were

[6]Unreported, CA 40309 of 1993, 15 June 1993 (CA NSW).

“general observations based upon submissions made to the Tribunal and a consideration of some of the cases, designed to expose my thinking leading up to the judgment in this case rather than as a guide for medical practitioners, although hopefully, they may also serve that purpose.”[7]

[7]Ibid at p.164

Importantly, he warned that his observations “should not be taken as binding statements of law or principle.”[8]

[8]Ibid.

A similar approach had been taken some seven years earlier by Kirby P. in Stewart v.  Secretary, Department of Health[9].  His Honour said:-

[9]Unreported, CA 66 of 1986, 6 August 1986 (CA NSW).

“Sexual involvement with patients.  Community attitudes to emotional and sexual relationships have undergone radical changes since Lord Denning delivered the judgment of the Privy Council, on appeal from the Disciplinary Committee of the General Medical Council of the United Kingdom in De Gregory v. General Medical Council [1961] AC 957. Adultery, and the notion of matrimonial offences has been removed from our law. Medical practitioners are members of the general community. They and their patients can be expected, as a cross section of the community, to reflect the changing community standards and sexual attitudes to sexual relationships and emotional associations. Some evidence that the law will recognise these changing standards can be found by contrasting the decision of Beach J in the Supreme Court of Victoria in Cato v Medical Board of Victoria, unreported 21 June, 1985 with the righteous language of Lord Denning in De Gregory.

This said, it still remains true, as it was properly conceded by counsel for the appellant, that medical practitioners secure the access that is necessary for the performance of their professional skills, to the body and intimate secrets of their patients, in circumstances in which the patients are vulnerable and dependent upon the practitioner for honourable and skilful conduct.  That conduct should be uncomplicated by the sometimes distorting effect which emotional, and especially sexual, attachment can bring.  To say this is not to ignore the fact that many patients will, out of admiration and gratitude, form close emotional bonds with those treating them.  Sometimes these will have a sexual connotation, even if unrecognised.  Nor is it to ignore the fact that, in modern medical practice, a concerned physician will not confine himself or herself to treatment of isolated maladies but will pay attention to the whole emotional and physical state of the patient, recognising the integration of these aspects of behaviour with physical and mental illness.  Accordingly, it will be quite natural, in some circumstances, for medical practitioners to reciprocate the affection shown by a patient, arising from the sharing of intimate and critically important experiences in the patient’s life.

However it is unacceptable for advantage to be taken of a position of trust, particularly to do harm to the patient, including emotional harm whilst the patient remains in the care of the medical practitioner.  Equally unacceptable is it to deprive the patient of the advantage of dispassionate diagnosis and treatment because the relationship between the medical practitioner and the patient has become charged with emotion (whether sexually based or not) which prevents the practitioner from offering objective professional judgment and skill, or the patient from receiving it, to the patient’s best advantage.”

Although this was said in a dissenting judgment, the dissent was not germane to the point for which the passage is cited.

If there is to be an appeal to standards enunciated in judgments, I prefer to adopt those in the more recent Australian judgments.  More importantly, I do not think that De Gregory can be used as authority for the proposition for which it was cited. 

In further support of the proposition that the conduct of the patient was a relatively minor  consideration, counsel for the Board cited this passage from Re a Medical Practitioner:

“In mitigation, I record my satisfaction that it is unlikely that the respondent will offend again in the event that he is allowed to continue practising.  I am satisfied that he truly regrets his breach of duty.  His remorse is evidenced by his confession of guilt and by the fact that he terminated the relationship very quickly.  It is desirable that I dispose of the question of relative responsibility for the development of the relationship as between the complainant and the respondent.  As I see it, for present purposes this question is of little relevance.  The standard of conduct with which I am concerned is as much designed to protect a vulnerable patient from himself or herself as from the unwelcome advances of an amorous medical practitioner.  The profession has long recognised that a patient may well be in a vulnerable position in which he or she is likely to develop a dependence upon or attachment to a care-giver.  Therefore it is not correct to seek to apportion blame as between the patient and the practitioner.

Further, these rules are designed for the good of the profession as a whole and for the benefit of the general public which must be able to rely upon the availability of the profession’s expertise.  The continue delivery of high quality health care by the profession can only be ensured by the maintenance of confidence in care-givers on the part of patients and patients’ families.  Thus in proceedings such as this, I am concerned with the duty of the practitioner to the profession and to the public as a whole as well as to the particular patient.  That duty proscribes doing anything likely to undermine public confidence in the individual practitioner or in the profession.  There can be no question of “blame” attaching to the patient who owes no relevant duty to the doctor, the profession or the public.  The applicant was in a position recognized as being vulnerable.  That she should have succumbed to that vulnerability is not a matter for criticism.

Of course it would be a circumstance of aggravation if the practitioner had forced his attentions upon an unwilling patient.  That does not lead to the conclusion that willingness or even enthusiasm on the part of the patient is a mitigating factor in considering the conduct of the practitioner.  It is instructive to note that in de Gregory v.  General Medical Council, by the time of the hearing before the Disciplinary Committee, the lady in question had been divorced by her husband, given birth to a child of which the practitioner was the father and married the latter."[10]

[10][1995] 2 Qd R at p.165.

Particular reliance was placed on the last paragraph of this passage.

I do not think in that case his Honour was purporting to enunciate a general principle which must apply in every case.  He said, “As I see it, for present purposes this question is of little relevance.”[11]  He said that the fact that it is a circumstance of aggravation if the practitioner has forced his attentions upon an unwilling patient does not lead to the conclusion that willingness or even enthusiasm on the part of the patient is a mitigating factor; but he did not say that in some cases, other considerations might not lead to that conclusion.  In the case before his Honour, the patient was on the facts in a vulnerable position at the time she developed an attachment to the practitioner.  His Honour’s remarks drew attention to the fact that one of the most important objectives of the ethical standard is to protect such patients from themselves.  In such circumstances, the whole point of the standard would often be defeated if much weight were to be given to the patient’s conduct.  But it does not follow that in no case can the patient’s conduct be of significant weight.  To hold otherwise would in my view carry the paternalism inherent in the idea of protecting a patient from himself or herself to a level inconsistent with the mores of Australian society to day[12].  I find support for this approach in the decision of Marks J.  in Peeke v.  Medical Board of Victoria[13], where His Honour took into account a number of aspects of the patient’s conduct as mitigating factors.  Another example may be found in the decision of the Tribunal in Medical Board of Queensland  v.  Russell[14]  where the Tribunal took into account the facts that the patient was some 10 years older than the practitioner and was a man who sought the company not only of the practitioner but also of other women apart from his wife.[15]

[11]My emphasis.

[12]On the philosophy of paternalism see the sources cited by D.Tan: “Sexual Misconduct by Doctors and the Intervention of Equity”, (1997) 4 JLM 243 at p.258, nn. 102-4.

[13]Unreported, No 10170 of 1993, 19 January 1994 (SC Vic).

[14]Unreported, No 10 of 1997, 18 December 1997.

[15]See generally S. Smith: “Doctors, Sexual Misconduct and Contemporary Values”, (1997) 5 JLM 178.

Counsel next cited a passage from the decision of the Tribunal in Medical Board of Queensland v. Goodman:

“The Tribunal has, and the profession has traditionally taken a very serious view of misconduct of this kind.  When one reads the references which have been put before us, one detects a certain misunderstanding amongst the referees as to why it is that we take a serious view of a practitioner who has a sexual relationship with a patient.  I must say that before I came to this Tribunal I also had difficulty in understanding the seriousness with which such conduct was treated.  However it does not take long to realise that patients, particularly female patients, who find themselves in relationships of this kind with medical practitioners are inevitably people who have been overborne by a person who has been put by the medical system into a position of trust with respect to them.  It is because there is an abuse of a position of trust and associated power that we take such a serious view of misconduct of this kind.”[16]

[16]Unreported, No 8 of 1995, 18 December 1995 (Dowsett J.).

Counsel cited that as a statement of general principle, while conceding that “inevitably” was probably too strong. 

For the respondent, Mr Tait did not, as I understand it, challenge this statement of principle, although he submitted that on the facts, Goodman was a far more serious case than the present. 

The practitioner

After the amendment of the charge and his admission of guilt, Dr Martin gave evidence relating to what order that Tribunal should make.  Regrettably, part of his evidence was less than frank; to put it simply, he lied in an attempt to exculpate himself.  At first he said that he was not  aware at the time that his behaviour in commencing the relationship was unethical.  In cross-examination he admitted that this answer was untrue, and that at the inception of the relationship he knew it was unethical and inappropriate to have a relationship with a patient.  Nonetheless he maintained that at the time, he thought it was all right to have relationships with patients if  they were happy to have relationships.  He asserted that he had changed his mind now on that matter, but admitted that the change of mind had been brought about only by the prospect of a penalty.  He admitted that in the early stage of the relationship, in 1983 and 1984, it was characterised at least on his part as essentially one of lust.  I am satisfied that it was so for Ms Levi also.  Indeed, although both believe that they loved each other deeply during the period of the de facto relationship, I am satisfied that on both sides it was a selfish love founded primarily on sexual desire.  The prompt development of a torrid sexual relationship (Dr Martin said that they spent every night together for the first two weeks despite not living together) provided the alleged justification for Dr Martin’s assertion (which I reject) that the relationship amounted to a de facto marriage prior to March 1995.  Despite that all that has happened, Dr Martin said that he does not see the relationship as a cause of potential harm; that would exist only when a doctor used his position of power and dominance over a dependent patient. 

It is trite law that the purpose of the disciplinary jurisdiction is the protection of the public.  As the Tribunal has observed in a number of cases, there are a number of aspects to this.  In some cases, protection may be achieved by erasing the practitioner’s name from the register.  In others, the deterrent effect of disciplinary punishment, coupled with the knowledge of the stress, cost and publicity associated with disciplinary proceedings, may be enough to satisfy the Tribunal that there is little risk to the public from the practitioner.  The existence of genuine remorse is a factor which may assist the Tribunal in reaching a conclusion that the practitioner poses little danger to the public.  The Tribunal must also consider the issue of general deterrence.  The order which the Tribunal makes must be such as to deter other members of the profession who might be minded to behave in a similar way.  It must also be calculated to maintain public confidence in the profession and in the system of disciplinary administration.  All of these considerations must be weighed in the present case.

In the present case, the practitioner’s conduct was serious.  He took advantage of knowledge gained from his patient to begin the relationship.  Soon afterwards, Ms Levi consulted him when she was in great distress (or at least, he so perceived her); but he continued the relationship notwithstanding.  In such a situation, it is of little consequence that a patient may be a willing or even an enthusiastic sexual partner, for the reasons referred to above.  He compounded his error by dishonesty in the Tribunal; and it is not clear that even now, he fully recognises the significance of the error.  Although he denied the possibility of his reoffending, I do not think the risk of this is trivial.  On the other hand, the offending conduct happened 14 years ago and Ms Levi’s subsequent conduct is an important factor.  The fact that the practitioner and Ms Levi became de facto partners is a relevant consideration.  She has received very significant financial benefits from the practitioner.  She has delayed acting upon her complaint for about 13 years and the practitioner has had allegations hanging over his head for about 4 years.  The maintenance of public confidence in the system of discipline requires that conduct involving intense sexual activity with a patient attract a significant penalty; but public confidence also requires that proceedings and outcomes in the Tribunal appear to be fair.  Having regard to the numerous factors to which reference has already been made, I do not accept the submission that erasure of the practitioner’s name from the register is the appropriate order.

In the alternative, counsel submitted that a suspension could only be appropriate if Dr Martin were willing to give undertakings in a form proposed by the Board.  Dr Martin was willing to give the undertakings proposed (or substantially such undertakings).  The undertakings in question involve the establishment of a supervisory regime in respect of Dr Martin’s examination of female patients and his attendance for psychiatric or psychological treatment for the next 5 years.  Dr Martin was willing to give these undertakings in association with any suspension order, but his willingness is not a sufficient reason for the Tribunal to accept them.  The Board has not sought to prove that Dr Martin took advantage of examinations of female patients or that he conducted illicit sexual activities in his rooms.  There is no demonstrated psychiatric or psychological deficit in Dr Martin’s behaviour which would be met by the undertakings.  The undertakings are not in my view sustained by the evidence put forward at the hearing.  Ms Levi’s allegations are an insufficient foundation.  The undertakings do not seem to me to be relevant to the prospects of Dr Martin’s reoffending.  A significant punishment is required.

Weighing things as best I can I think the appropriate order is that Dr Martin’s registration be suspended for 12 months.  I will hear the parties on the question of costs.