Medical Board of SA v Vaska No. Dcadd-03-322

[2003] SADC 166

Medical Board of South Australia v Paul Vaska
[2003] SADC 166

Judge Lee with Members Wicks, Wilson and Chessell
Civil

1. These proceedings concern a complaint which the Medical Board of South Australia has brought against the respondent pursuant to s.58 of the Medical Practitioners Act 1983.

2. The complaint alleges that the respondent is guilty of unprofessional conduct in the practice of medicine with respect to two young female patients.  The patients are sisters, and we will call them AB and CD.  The respondent admits the allegations of both fact and unprofessional conduct in the complaint.  This means that our only task is to determine which of the disciplinary powers set forth in subsection (3) of the section should be exercised, given that protection of the public and maintenance of public confidence in the standards of the profession must be the paramount considerations: Craig v Medical Board of South Australia (2001) 79 SASR 545.

3. The allegations of fact in the complaint can be summarised in this way.

   With respect to AB:

   1.AB was a regular patient of the respondent from 1999.  She was born on 13 April 1980.

   2.On the occasion of some consultations between about April 2001 and July 2002, the respondent invited AB to dinner, or to have a drink with him.  AB declined the invitations.

   3.Between about May and August 2002, the respondent telephoned AB on her work number or on her mobile phone on an average of once a week.  Initially, AB had provided the respondent with her mobile phone number for a medical reason, but the content of all subsequent calls was social rather than medical.

   4.On 14 or 15 August 2002, the respondent telephoned AB at her place of work and asked her what she was doing over the weekend.  She informed him that she was busy and that her parents were going to Queensland.

   5.On 19 August 2002, the respondent telephoned AB and invited her to have a drink with him.  At AB’s suggestion, the respondent visited her at her home and drank wine with her and her boyfriend.

   With respect to CD:

   1.CD was a regular patient of the respondent from about May 2002.  She was born on 20 February 1985.

   2.From late June or early July to August 2002, CD consulted the respondent weekly for treatment of symptoms of flu.  During some of those consultations, CD was accompanied by AB. During one of those consultations, the respondent said he was concerned that CD was not eating properly and that he would take her out and make sure she was fed properly.

   3.After CD had recovered from bronchitis, she continued to consult the respondent for other medical conditions.  During some of those consultations, the respondent suggested to CD that he take her out for a drink.

   4.During some of the consultations when CD was accompanied by AB, the respondent suggested to both that he take them out for a drink.

   5.During a consultation on 19 August 2002, knowing that her parents were interstate on holidays, the respondent invited CD out for dinner.  CD declined the invitation.

   6.On 21 August 2002, CD was unwell and absent from school.  The respondent visited her at her home and treated her for asthma related breathing difficulties and checked her blood pressure.  CD offered the respondent a glass of wine, which he accepted and drank.  He advised her that she needed to relax and eat more.  He then invited her out to dinner.

   7.Later that same day, the respondent drove CD in his vehicle to the German Arms Hotel at Hahndorf where they had dinner.  They also consumed wine which the respondent purchased.  During the course of the meal, the respondent kissed CD on the lips on a number of occasions.

   8.Following the dinner, and after driving CD to a nearby park, the respondent

   ·     kissed her on a number of occasions

   ·     pushed her head towards his groin and engaged with her in a number of acts of sexual intercourse, namely fellatio

   ·     lifted her skirt to reveal her legs and requested vaginal sexual intercourse with her; she refused, feigned illness, and requested to be taken home.

   9.During the return journey to Adelaide, the respondent

   ·     placed his left hand inside CD’s jacket and touched her breasts

   ·     placed CD’s hand onto his exposed penis

   ·     pushed CD’s head towards his groin

   ·     engaged with her in a further act of sexual intercourse, namely fellatio

   ·     on two occasions, digitally penetrated CD’s vagina with two fingers of his left hand.

   10.CD felt anxious, distressed and intimidated during and after the incidents in the vehicle and feigned illness.  The respondent requested that CD not tell anyone about the conduct, in particular AB, and suggested meeting again.

   11.During the course of the dinner at the German Arms Hotel, the respondent discussed with CD her general medical condition.  He offered to prescribe her an amphetamine like drug, which he described as speed, for a non-medical purpose, namely to assist in keeping her awake and alert whilst studying.

4. The allegations of unprofessional conduct against the respondent are that he

   (i)abused his professional position of trust as a medical practitioner by repeatedly inviting AB and CD to socialise with him and by in fact socialising with them and sharing alcohol with them;

   (ii)abused his professional position of trust and failed to take adequate care for the psychological health and wellbeing of CD by engaging in acts of sexual intercourse with her and other acts of a sexual nature;

   (iii)offered to prescribe a drug to CD for a purpose for which it was not medically indicated; and

   (iv)engaged in conduct which was such as to bring the medical profession into disrepute and which was inconsistent with the respondent’s responsibility for the care and treatment of AB and CD.

5. Counsel for the Board submitted that cancellation of the respondent’s registration as a medical practitioner is the appropriate order, whereas counsel for the respondent submitted that suspension of registration would suffice, given the respondent’s background, career and otherwise good character, and given certain other matters of amelioration.

6. The respondent is 56 years of age.  He was born and educated in India.  He obtained an MBBS in 1970 and trained in general surgery and urology between 1972 and 1977.  He was then admitted to membership of the College of Surgeons in India.  He married in 1972.  His wife is a pathologist.  They have a son born in 1974 and a daughter born in 1977.  They came to Australia in 1982.  Since then, the respondent has worked in the fields of urology, surgery and general practice in Adelaide and Darwin.  He has been a member of a medical clinic since 1997.  He has also worked at a medical centre since January 2000.

7. It is apparent from material put before us by his counsel that the respondent is a competent, caring and hard-working practitioner, liked and trusted by his colleagues and staff, highly regarded by his patients, and is otherwise of good character.  Counsel made the point that the respondent made early and frank admissions of fact and responsibility to the investigator of the Board by whom he was interviewed, and that this has led to a saving in time and cost, and the avoidance of the need for AB and CD to give evidence.  Counsel informed us that the respondent has disclosed his conduct to many of his colleagues.  Counsel submitted that this is further evidence of his contrition, and his willingness to face up to his wrongdoing.  Counsel informed us that the respondent has had to endure the pain of disclosure, not only to his wife and children, but also to his church, of which he was and remains an active member.  Counsel read a letter from the respondent in which he apologised to AB and CD.  Finally, counsel informed us that this matter has had a catastrophic impact upon the respondent.

8. Although these are all matters which must be bought to account in the respondent’s favour, in the end it is the seriousness of the conduct on 21 August 2002 with respect to CD which is of primary concern.  We agree with counsel for the Board that there are a number of aggravating features.

9. The conduct was premeditated and persistent.  The respondent’s choice of a dining venue in the hills, his supply of alcohol, and his suggestion, as is apparent from CD’s statement, that she tell her grandmother when her grandmother called her on her mobile phone that she was studying, were all for a sinister purpose.  Moreover, it is apparent from his last words to CD on that evening that he hoped that there would be another occasion.  There was no other occasion, but this was because AB and CD went to the police.  In other words, this is not a case of an isolated error of judgment, made on the spur of the moment, and quickly regretted.

10. Any patient is entitled to expect that a doctor will not seek to exploit the doctor/patient relationship for his own sexual gratification.  To do so involves a serious breach of trust.  But especially must this be so in the case of a young patient.  CD was only 17 at the time.  And even more must this be so in the case of a much older doctor.  The respondent was 55.

11. The conduct has had a significant impact upon CD.  She was affected psychologically, especially in her relationship with her father.  As well, she lost four weeks from her year 12 studies at school, and subsequently failed a matriculation subject.  She had to defer her plans to go to university.

12. For all these reasons, we consider that the respondent’s conduct represents a very serious departure from the standard of behaviour that was expected of him by his peers and by the community. We consider that any outcome less than cancellation would fail to meet adequately two requirements of an order under s.58. The first is the need to maintain public confidence that proper professional standards will be observed by medical practitioners and that those standards will be enforced by the Board and the Tribunal. The second is the need for an order which will operate as a sufficient deterrent to any other member of the profession who might be tempted to behave in this way.

13. The order of the Tribunal is that the registration of the respondent as a medical practitioner on the general and specialist registers be cancelled.