Medical Board of Western Australia and Smith
[2006] WASAT 213
•31 JULY 2006
MEDICAL BOARD OF WESTERN AUSTRALIA and SMITH [2006] WASAT 213
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 213 | |
| MEDICAL ACT 1894 (WA) | |||
| Case No: | VR:206/2005 | 3, 4 AND 5 MAY 2006 | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) MS J STANTON (SENIOR SESSIONAL MEMBER) DR E ISAACHSEN (SENIOR SESSIONAL MEMBER) DR P QUATERMASS (SENIOR SESSIONAL MEMBER) | 31/07/06 | |
| 34 | Judgment Part: | 1 of 1 | |
| Result: | Practitioner found guilty of infamous conduct in a professional respect Registration suspended for 12 months | ||
| A | |||
| PDF Version |
| Parties: | MEDICAL BOARD OF WESTERN AUSTRALIA LEONIE SMITH |
Catchwords: | Vocation regulation Medical practitioner Medical Act 1894 (WA) "Infamous conduct in a professional respect" "Improper conduct in a professional respect Personal relationship between practitioner and patient Sexual relationship Nature of relationship during therapeutic relationship Whether "infamous" or "improper" conduct |
Legislation: | Medical Act 1894 (WA), s 13 Medical Act 1858 (UK) |
Case References: | A Practitioner v The Medical Board of Western Australia [2005] WASC 198 Allinson v General Council of Medical Education and Registration [1894] 1 QB 570 Alroe v Medical Board of Queensland [2004] QCA 364 Basser v Medical Board of Victoria [1981] VR 953 Cato v Medical Board of Victoria (Unreported, Supreme Court of Victora, 29 June 1985, BC 8500201) Craig v Medical Board of South Australia (2001) 79 SASR 545 Cranley v Medical Board of Western Australia (Unreported; Supreme Court of Western Australia (Ipp J); No 1211 of 1990; 21 December 1990; BC 9000957) De Gregory v General Medical Council [1961] AC 957 Ex parte Meehan; Re Medical Practitioners Act [1965] NSWR 30 Felix v General Dental Council [1960] AC 704 Hoile v Medical Board of South Australia (1960) 104 CLR 157 McCoan v General Medical Council [1964] 1 WLR 1107 Peeke v Medical Board of Victoria (Unreported; Supreme Court of Victoria; (Marks J); No 10170 of 1993; 19 January 1994) Re A Medical Practitioner [1995] 2 Qld R 154 Re B (Unreported decision of the Medical Board of Western Australia; Lib No 1392-48; 18 September 2001) Re N (Unreported decision of the Medical Board of WA, delivered 8 June 2005; No 1987 - 138) Roylance v The General Medical Council [2001] AC 311 Briginshaw v Briginshaw (1938) 60 CLR 336 Craig v Medical Board of South Australia (2001) 79 SASR 545 Jemielita v The Medical Board of Western Australia (Unreported; SC WA; No 1106 of 1992; 13 November 1992; Lib No 920584) Medical Board of Queensland v Martin (2000) 2 QdR 129 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Re R (Unreported; Med Bd WA; 29 July 2003; No 1387-36) |
Orders | 1. The Tribunal finds Leonie Smith (the practitioner) guilty of infamous conduct in a professional respect in that she encouraged and/or permitted and was involved in a close personal relationship of an intimate and emotional nature with the patient during a period in which she was the patient's general practitioner.,2. The registration of the practitioner under the Medical Act 1894 (WA) be suspended for 12 months.,The Tribunal will hear from the parties as to:,• The date on which the suspension should commence.,• The costs of the proceedings. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : MEDICAL ACT 1894 (WA) CITATION : MEDICAL BOARD OF WESTERN AUSTRALIA and SMITH [2006] WASAT 213 MEMBER : JUSTICE M L BARKER (PRESIDENT)
- MS J STANTON (SENIOR SESSIONAL MEMBER)
DR E ISAACHSEN (SENIOR SESSIONAL MEMBER)
DR P QUATERMASS (SENIOR SESSIONAL MEMBER)
- Applicant
AND
LEONIE SMITH
Respondent
Catchwords:
Vocation regulation - Medical practitioner - Medical Act 1894 (WA) - "Infamous conduct in a professional respect" - "Improper conduct in a professional respect - Personal relationship between practitioner and patient - Sexual relationship - Nature of relationship during therapeutic relationship - Whether "infamous" or "improper" conduct
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Legislation:
Medical Act 1894 (WA), s 13
Medical Act 1858 (UK)
Result:
Practitioner found guilty of infamous conduct in a professional respect
Registration suspended for 12 months
Category: A
Representation:
Counsel:
Applicant : Mr P A Tottle and Ms M Naylor
Respondent : Ms GA Archer
Solicitors:
Applicant : Tottle Partners
Respondent : Clayton Utz
Case(s) referred to in decision(s):
A Practitioner v The Medical Board of Western Australia [2005] WASC 198
Allinson v General Council of Medical Education and Registration [1894] 1 QB 570
Alroe v Medical Board of Queensland [2004] QCA 364
Basser v Medical Board of Victoria [1981] VR 953
Cato v Medical Board of Victoria (Unreported, Supreme Court of Victora, 29 June 1985, BC 8500201)
Craig v Medical Board of South Australia (2001) 79 SASR 545
Cranley v Medical Board of Western Australia (Unreported; Supreme Court of Western Australia (Ipp J); No 1211 of 1990; 21 December 1990; BC 9000957)
De Gregory v General Medical Council [1961] AC 957
Ex parte Meehan; Re Medical Practitioners Act [1965] NSWR 30
Felix v General Dental Council [1960] AC 704
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Hoile v Medical Board of South Australia (1960) 104 CLR 157
McCoan v General Medical Council [1964] 1 WLR 1107
Peeke v Medical Board of Victoria (Unreported; Supreme Court of Victoria; (Marks J); No 10170 of 1993; 19 January 1994)
Re A Medical Practitioner [1995] 2 Qld R 154
Re B (Unreported decision of the Medical Board of Western Australia; Lib No 1392-48; 18 September 2001)
Re N (Unreported decision of the Medical Board of WA, delivered 8 June 2005; No 1987 - 138)
Roylance v The General Medical Council [2001] AC 311
Case(s) also cited:
Briginshaw v Briginshaw (1938) 60 CLR 336
Craig v Medical Board of South Australia (2001) 79 SASR 545
Jemielita v The Medical Board of Western Australia (Unreported; SC WA; No 1106 of 1992; 13 November 1992; Lib No 920584)
Medical Board of Queensland v Martin (2000) 2 QdR 129
Pillai v Messiter (No 2) (1989) 16 NSWLR 197
Re R (Unreported; Med Bd WA; 29 July 2003; No 1387-36)
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Summary of Tribunal's decision
1 In October 1995, a patient consulted Dr Leonie Smith (the practitioner) who then was engaged in general medical practice.
2 At a second consultation soon after the patient - who was a woman -was diagnosed by the practitioner as suffering from major depression with possible polymyalgia and chronic fatigue syndrome and commenced upon anti-depressant treatment by the practitioner.
3 Thereafter during the balance of 1995 and early 1996, the practitioner began to form a social friendship with the patient.
4 In February 1996, the practitioner told the patient that the patient ought to attend another doctor but the patient refused to do so. The practitioner made no further effort at that time to ensure the patient saw another doctor, and did not so insist until early 2000.
5 In March to May 1997, the practitioner and the patient engaged in sexual relations.
6 At material times, between October 1995 and Easter 1998, the practitioner was married and lived with her husband and children. In January 1998, however, she left her marriage. At Easter 1998 she invited the patient to move into a house with her and one of her children.
7 Thereafter, the practitioner and the patient lived together in the same house from Easter 1998 to February 2003.
8 After sexual relations between the practitioner and the patient ceased in May 1997, the practitioner and the patient continued to be physically affectionate with one another. The practitioner also financially supported the patient in certain ways including by paying university fees.
9 In early 2000, the practitioner and the patient purchased a property together and moved into that property at Easter 2000.
10 At about the same time, the practitioner arranged for another doctor at her general practice to become the patient's treating general medical practitioner.
11 The Medical Board of Western Australia brought an application against the practitioner alleging that she was guilty of infamous or
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- improper conduct in a professional respect in that she encouraged and/or permitted and was involved in a close personal relationship of an intimate and emotional nature with the patient during a period in which she was the patient's general practitioner, contrary to s 13 of the Medical Act 1894 (WA).
12 The practitioner admitted that her relevant conduct at material times constituted improper conduct in a professional respect but denied that she was guilty of infamous conduct in a professional respect.
13 The Tribunal found, contrary to the statement of the practitioner, that the relationship between her and the practitioner was not one that could in any sense properly be characterised as a sisterly relationship, simply borne out of compassion generated by the therapeutic relationship. A suggestion that the practitioner and the patient were merely flatmates or housemates for much of the time was far too detached and neutral a description to describe the true nature of the relationship.
14 The Tribunal noted that the evidence showed that the practitioner and the patient shared a bed regularly, supported each other emotionally, gave gifts and exchanged terms of endearment and maintained a very close, personal and intimate relationship in which each gained material and emotional support.
15 The Tribunal found it was not necessary for it to intrude further into the nature of that relationship by attempting to place a label on it, but certainly it was a relationship that was not merely sisterly, not merely that of flatmates, but very much like that of two persons who are deeply committed to each other, albeit that it lacked a sexual component of the type the two had engaged in for two months in 1997.
16 The Tribunal noted the importance of a medical practitioner not transgressing boundaries in a doctor/patient relationship and that the problem of "transference", in which a patient may become dependent upon a practitioner, is real and important.
17 In the circumstances of the practitioner's case, the Tribunal found:
• there can be no doubt that the practitioner breached the trust of the doctor/patient relationship when she allowed the personal relationship she had begun to develop with the patient to become a sexual relationship for a two month period;
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- • it was a misuse of the medical practitioner's power to allow the circumstance to develop in the way that it did;
• that the relationship occurred at a time when the patient was clearly vulnerable to exploitation, given the depression she suffered and the background of sexual abuse of which the practitioner became aware; and
• that thereafter for the practitioner to maintain a close, personal and intimate relationship with the patient whilst continuing to treat the patient was quite inappropriate.
18 The Tribunal found the practitioner guilty of infamous conduct in a professional respect in that she encouraged and/or permitted and was involved a close, personal relationship of an intimate and emotional nature with the patient during a period in which she was the patient's general practitioner.
19 The Tribunal found that so far as penalty was concerned, a mere reprimand or fine would be a totally inadequate way of communicating the censure that is required of the practitioner's misconduct. Instead, the Tribunal considered a suspension of the practitioner's registration for a period of 12 months to be appropriate.
Issues
20 The Medical Board of Western Australia (Board) alleges Dr Leonie Smith (the practitioner) is guilty of infamous or improper conduct in a professional respect in that she encouraged and/or permitted and was involved in a close personal relationship of an intimate and emotional nature with a patient (the patient) during a period in which she was the patient's general practitioner contrary to s 13 of the Medical Act 1894 (WA).
21 Many of the facts relating to the allegation are not in dispute. As a result, the main issue in the proceedings is whether the practitioner's conduct should be considered "infamous", as the Board contends, or "improper", as the practitioner contends.
Facts
22 Many of the facts are agreed by the parties.
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23 The parties and the Tribunal also agree there is no need to identify the patient or other persons' mentioned in evidence and their privacy should be respected.
24 The patient is a foreign national, born on 15 September 1959.
25 The patient arrived in Western Australia in October 1994 to undertake a PhD at the University of Western Australia.
26 The patient was admitted to the PhD programme conditional upon her improving her English skills. At the time of her arrival, she was almost unable to speak or understand spoken English, although her reading, comprehension and writing skills were better. At that time she took a 10 week intensive language course in English at the University of Western Australia.
27 The patient commenced the PhD programme in January 1995.
28 By mid-1995 the patient was suffering various symptoms including lack of sleep, inability to concentrate and joint pain.
29 At that time she was still far from fluent in English and was experiencing difficulties assimilating to life in Australia.
30 On 17 October 1995, the patient attended the practitioner as a general medical practitioner for the first time. She attended the appointment with a friend, Ms C, who made the appointment. The practitioner had been a friend of Ms C's family for many years.
31 Due to difficulty arranging an appointment which was convenient for the practitioner, the patient and Ms C, the practitioner asked the patient if she would feel comfortable attending a second appointment without Ms C. The patient agreed.
32 Following her second consultation with the practitioner, which occurred on or about 28 October 1995, the patient was diagnosed by the practitioner as suffering from major depression with possible polymyalgia and chronic fatigue syndrome and was commenced upon anti-depressant treatment by the practitioner.
33 The practitioner continued to treat the patient as a general medical practitioner from on or around 17 October 1995 to in or around February 2000 (this period being considered the relevant period for the purposes of these proceedings).
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34 The practitioner in her capacity as the patient's general practitioner was responsible for the management of the patient's health care.
35 In or about November 1995, the patient had a funding application concerning her PhD studies turned down. This had a serious emotional impact upon the patient and compromised her ability to work. As a result of this funding decision, the patient had fewer financial resources to employ technicians to assist in her work.
36 In October 1995, the practitioner - who was born on 11 February 1953 - was married with three (then teenage) children.
37 In or about November 1995, the practitioner arranged for one of her sons to do work experience with the patient at the University.
38 In about December 1995, the practitioner invited the patient and Ms C to use a granny flat attached to holiday accommodation that the practitioner and her family were planning to use while on holiday.
39 By at least 1 February 1996, the practitioner was aware that the patient was lonely and very dependent upon the friendship of Ms C.
40 In February 1996, the practitioner, by reason of her growing friendship with the patient, told the patient that she (the patient) ought to attend another doctor, but the patient refused to do so. The practitioner made no further effort to ensure the patient saw another doctor until early 2000.
41 In or about April 1996, the practitioner discussed with a colleague in the medical practice at which she was employed, Dr Lachlan Dunjey, the dilemma of having friendships with patients.
42 In April 1996, the patient accompanied the practitioner on a camping trip with the practitioner's children and other families. This was the first of a number of such trips.
43 Some time after April 1996, a Ms P warned the practitioner about her friendship with the patient.
44 For two months, in or around March to May 1997, the patient and the practitioner engaged in sexual relations. The physical and emotional nature of that relationship was identified in evidence and was not in dispute between the practitioner and the patient in the proceedings in the Tribunal.
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45 In January 1998, the practitioner left her marriage and at Easter 1998 she invited the patient to move into a house with her and one of her children.
46 The practitioner and the patient lived together in the same house from Easter 1998 to February 2003.
47 After sexual relations between the practitioner and the patient ceased in May 1997, the practitioner and the patient continued to be physically affectionate with one another.
48 The practitioner subsidised the patient financially, including by paying $10 000 in university fees on her behalf.
49 Whilst the patient and the practitioner lived together in the same house they moved freely through the house and each other's rooms. From January 1998, the practitioner and the patient often shared a bed.
50 In about December 1998, the practitioner gave the patient a ring.
51 On another occasion the practitioner gave the patient another piece of jewellery in a box which bore an inscription.
52 In or about December 1999, the practitioner and the patient went on holiday together to Mexico and stayed with the patient's family. Whilst on holiday they shared a bed.
53 In early 2000, the practitioner and the patient purchased a property in the hills near Perth and moved into that property together at Easter 2000.
54 Also in early 2000, the practitioner arranged for another doctor at her practice, Dr Dunjey, to become the patient's treating general medical practitioner. After the referral of the patient to Dr Dunjey, the practitioner administered at least one flu shot to the patient and inquired about her health generally.
55 In about October 2000, the practitioner took out a life insurance policy over the patient's life.
56 The patient made all the mortgage payments on the property, the practitioner having applied the proceeds of the sale of her previous home to the purchase of the property. The patient's name was not added to the title of the property until May 2002, when she became eligible to own property in Australia. When the patient had her name added to the title, the practitioner and the patient owned the property as joint tenants.
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57 The patient became jealous when the practitioner later commenced a friendship with a Mr RC. The patient became withdrawn and depressed.
58 In January 2003, the patient attempted self-harm by falling onto a kitchen knife.
59 After the patient's attempted self-harm, and before the ambulance arrived the practitioner cared for the patient, called her "sweetheart" and put on the finger the ring earlier described.
60 In April 2003, the patient moved from the property which she shared with the practitioner.
61 At the hearing in the Tribunal, the patient and the practitioner each gave evidence, as did a number of other persons and a number of witness statements of other persons were received into evidence by consent. The reason for all this evidence at the hearing was that the practitioner did not accept the Board's characterisation of the relationship between her and the patient as a close, personal, intimate relationship that subsisted through the entirety effectively, of the therapeutic relationship during the relevant period.
62 As to the nature of the relationship between the practitioner and the patient disclosed by the evidence given to the Tribunal, more is said later in these reasons. What is important to note for present purposes, however, are the positions taken by the practitioner and the Board in relation to the allegations.
The practitioner's admission and contentions made on her behalf
63 The practitioner admits she is guilty of "improper" conduct in a professional respect. What she does not admit is that her conduct was "infamous".
64 As to the distinction between infamous conduct in a professional respect and improper conduct in a professional respect more is said later in these reasons. For present purposes, however, it is enough to say that the practitioner, like the Board, accepts that the established test of infamous conduct is that which has been accepted for many years, as articulated in Allinson v General Council of Medical Education and Registration [1894] 1 QB 570 at 763 by Lopes, LJ:
"If it is shewn that a medical man, in the pursuit of his profession, has done something with regard to it which would reasonably be regarded as disgraceful or dishonourable by his
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- professional brethren of good repute and competency then it is open to the General Medical Council to say that he has been guilty of infamous conduct in a professional respect."
65 Improper conduct in a professional respect is accepted by the parties as being conduct that is something less than infamous conduct.
66 The practitioner admits her behaviour was improper. She admits that:
• the patient was her patient;
• she should never have allowed sexual activity to take place; and
• she should never have allowed the relationship to develop in circumstances where the patient had been and was for some of the time still her patient.
67 As noted, the practitioner denies that her conduct was infamous.
68 On behalf of the practitioner, it is contended that in determining whether the practitioner's conduct should be considered infamous or improper, it is necessary to put the practitioner's conduct in context and to take account of a number of factors, particularly:
• that the practitioner did not sexually assault the patient without her consent in her consulting room, as unfortunately happened in some reported cases;
• that the practitioner did not coldly and calculatingly set out to target the patient as a source of sexual gratification, with no regard for the patient, as has happened in other reported cases;
• rather, the practitioner felt compassion and concern for the patient and wanted to help her; her mistaken improper conduct in allowing those feelings to affect her actions. She allowed the boundary of doctor/patient to be crossed. She allowed and contributed to the development of a close friendship. She allowed and contributed to sexual activity taking place. They were all errors but they were borne as a result of the practitioner's desire to assist the patient. The fact that it appears to have had the reverse
- affect on the patient was clearly a source of considerable pain to a woman as compassionate as the practitioner;
- • the practitioner acknowledges the wrongfulness of her behaviour and has taken steps to ensure that it never happens again. She has suffered greatly with feelings of remorse, guilt and humiliation. She has had to learn to live with the fact that a person that she sincerely wanted to help has ended up being hurt. The practitioner's actions though were not motivated by violence; they were not motivated by a craven desire for sexual gratification; they were not motivated by a lack of care or compassion for her patient. On the contrary, the wrongful behaviour occurred as a result of too much care and compassion and a failure to recognise the need to maintain professional boundaries.
69 For all of these reasons, counsel for the practitioner submits that the practitioner's wrongful conduct should be characterised as "improper", not "infamous" on the Allinson standard and as understood by reference to other relevant decided cases.
The Medical Board's contentions
70 The Board make four overarching points that the Board considers of importance in this case:
• First, that it is admitted by the practitioner that sexual relations took place between her and the patient during the relevant period when a therapeutic relationship of doctor/patient endured. The practitioner agreed that this constituted a gross breach of trust and that it was morally reprehensible. Counsel for the Board submitted that such conduct deserves the strongest reprobation and so should be characterised as infamous conduct.
• Secondly, that the evidence shows a close personal, intimate relationship subsisted between the practitioner and the patient throughout the entirety, effectively, of the therapeutic relationship, although obviously the period in which the doctor and the patient lived together during the therapeutic relationship was of more significance, that being between April 1998 and February 2000. Counsel for the Board submits that while there may be difficulties
- applying a particular label to that relationship, what is important is that it was a relationship from which the practitioner derived gratification in a number of important respects: social, emotional, love and domestic assistance. It was a relationship that cannot be seen as some altruistic continuation of the therapeutic relationship.
- • Thirdly, that there is only one standard of ethical conduct for medical practitioners. That is to say, there is not a standard of ethical conduct that applies to a doctor who is not depressed or vulnerable in some way, and another standard for those who are depressed or vulnerable in some way. Thus, counsel for the Board submits that whatever view the Tribunal might take of the practitioner's vulnerability, as explained by the evidence, the difficulties that she was facing in life at the time of the conduct complained of, those difficulties do not reflect upon the conduct itself. In other words, it is the conduct, not the reasons for the conduct in determining whether the conduct should be characterised as infamous or improper conduct in a professional respect.
• Fourthly, the Board submits there is nothing, when one looks at all the facts that ameliorates or lessens the seriousness of the practitioner's conduct. While there might be explanations which are relevant to mitigation, or might be relevant to mitigation, it would be quite wrong to blur the line between an assessment of the conduct and the issues that might explain it in a mitigation sense. As counsel had submitted in relation to the third point, counsel again submitted that in a clinical context there can only be one clinical standard for medical practitioners, not different standards depending upon factors that might go to explain a practitioner's conduct on a particular occasion.
The Tribunal's findings in relation to the practitioner's conduct
71 In this part of the Tribunal's reasons for decision, the evidence given by the practitioner and the patient and other persons is referred to for the purpose of making a finding on the primary issue in the proceedings, namely, whether the practitioner's conduct, which she admits, should be characterised as infamous or improper in a professional respect.
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72 As we have noted, the practitioner admits that her conduct was wrongful. She admits she should never have allowed sexual activity to take place. She admits she should never have allowed the relationship to develop in circumstances where the patient had been and was, for some of the time, still her patient.
73 The facts agreed between the parties as set out earlier show how the practitioner and the patient engaged in sexual relations for about two months in or around March to May 1997. This was at a time prior to the two of them commencing to live together. It was also at a time before the practitioner left her marriage.
74 The practitioner and the patient began living together, in the same house, from Easter 1998, and continued to live together in the same house - ultimately in the hills outside Perth - until February 2003.
75 During the period that they lived together from Easter 1998 to February 2003, the evidence does not disclose a continuing sexual relationship of the type that subsisted in the two months from about March to May 1997. Rather the relationship was of a different type. As agreed between the practitioner and the patient, and the parties, the relationship was one in which each showed physical affection towards the other. It also involved the practitioner financially assisting the patient - her friend - financially in relation to her continuing university studies.
76 At a personal level, it is also agreed that from January 1998 the practitioner and the patient they shared a bed. As a sign of the closeness of their relationship, the practitioner gave the patient a ring. On another occasion she gave her a piece of jewellery in a box which bore an inscription. When on holiday in Mexico in December 1999, the practitioner and the patient also shared a bed.
77 On behalf of the practitioner it is said - and this was also suggested by the practitioner herself - that in the period when the practitioner and the patient commenced living together after Easter 1998, the relationship between them was more like that of "sisters", a submission or statement that was intended to imply a relationship more like "flatmates", at arms length from each other.
78 However, the evidence suggests, as counsel for the Medical Board submits, and the Tribunal finds, that the relationship was indeed a close, personal, intimate relationship and that subsisted throughout the entirety effectively, of the therapeutic relationship. That therapeutic relationship
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- ended when the practitioner referred the patient to her medical practice colleague, Dr Dunjey, in early 2000.
79 It is acknowledged by the practitioner that she made a mistake - as she did - in not insisting that the patient see another medical practitioner in February 1996 when she told the patient that she ought to attend another doctor. At that point the patient refused. The practitioner simply accepted her refusal and made no further effort not to see the patient professionally or to ensure that the patient saw another doctor until early 2000 when she referred her to Dr Dunjey.
80 The patient refused to see another doctor when the practitioner told her she ought to do so in February 1996, no doubt because of the developing personal relationship between the two of them and the patient's growing dependency on the practitioner. It was that same developing relationship that caused the practitioner to suggest to the patient that she ought to see another doctor at that time. What followed the giving of that advice in February 1996 was a further development in the personal relationship between the practitioner and her patient that culminated in sexual relations in March to May 1997.
81 The practitioner commendably and frankly acknowledged in the Tribunal that her conduct was not appropriate. Her evidence and the evidence of members of her immediate family and other persons explained some of the circumstances surrounding the unhappy marriage she was experiencing at the time that she began to develop a personal relationship with the patient. These same witnesses also explained that the practitioner was in so many respects a person of great compassion, competence and integrity. However, for whatever reasons, the practitioner allowed herself to develop and maintain a close, personal and intimate relationship with the patient whilst she remained the patient's doctor.
82 The practitioner acknowledged that when she was first consulted by the patient, the patient had uncontrolled depression. She also explained that she had herself suffered from depression in the past, but at the time she was first consulted by the patient her own depression was controlled. The practitioner agreed that she discovered that the patient was a heavy consumer of alcohol. She also later discovered, in the course of the doctor/patient relationship, that the patient had been sexually abused when she was a girl - although she did not learn about the details.
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83 In short, the practitioner accepted, albeit with a little hindsight, that at the time the patient consulted her in October 1995, the patient was a classically, psychologically vulnerable person; and that that position remained so throughout 1995 and 1996. The practitioner agreed there may have been some improvement in the patient's position in 1997 but that it was only a gradual improvement.
84 In these circumstances, the practitioner accepted that the patient was highly vulnerable to "boundary transgressions" by a doctor. She also accepted that the patient was highly likely to be harmed by such boundary transgressions.
85 The practitioner had a proper therapeutic concern for the patient and seems strongly to have identified with her vulnerable situation, perhaps because of her own personal experiences. In early 1996, the practitioner gave the patient a pamphlet that dealt with coping with sexual abuse. She gave it to her after June 1996. The practitioner acknowledged that clearly there were areas that the patient had never explored that were causing her problems and that family relationships were also current issues for the patient. The practitioner said she believed that by late 1996 the patient was sufficiently functional, so far as her depression was concerned, to begin considering materials that might help her deal with some of her past issues.
86 The practitioner explained that by April 1998, the patient showed no evidence of depression at all. When asked why she did not then refer the patient to another medical practitioner, the practitioner said that her depression was not then the issue and "we were doing well with separating the roles, and it didn't occur to me to suggest that she go elsewhere, at that time". However, she accepted that with hindsight it should have occurred to her to refer the patient to another practitioner before the patient came to live with her in April 1998.
87 Counsel for the Medical Board asked the practitioner why it was that she did not refer the patient to another doctor until February 2000, when it seemed that the only difference in terms of the clinical picture of the patient between February 2000 and February 1996, was that in 2000 the practitioner and the patient were entering into a property transaction in respect of the house in the hills. The practitioner acknowledged that that was one of the issues, but that it was not the principle issue. She said the catalyst that made her reassess the position was that they were now going to have a legal arrangement together, the patient was no longer a student, and the patient was going to live in the house "longer term"; and that she
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- was strong enough now to find another doctor and could cope with re-establishing a relationship with another doctor.
88 The practitioner denied that the reason why she had not insisted the patient see another doctor before then was because she did not want to share the patient with anyone else. She rejected the proposition that the involvement of someone else in the patient's care would breach the intimacy the two of them had. She also denied the proposition that the reason she had not made the referral earlier was that she was concerned that someone might find out about her earlier active sexual contact with the patient. Nonetheless, the practitioner readily accepted that she should have seriously thought about insisting on the patient seeing another doctor before the two of them shared a house in April 1998.
89 The practitioner explained that she always felt able to manage the patient clinically, despite their continuing relationship during the relevant period, and was prepared to "pull out of it" at any point. When asked by counsel for the Board, how she could possibly manage a patient dispassionately and objectively with emotional problems and psychological problems when she had such a close relationship with her, the practitioner answered: "I know it sounds absurd". She added that she believed, during that time, that medically the patient was managed well.
90 The practitioner accepted, however, that when she provided a medical report as the patient's general practitioner to Health Services Australia, at a time when the patient was applying for ongoing residency in Australia, she made mention of the fact that the patient "has proved herself capable of independent self care, and full time productive employment", without alluding to the financial support that she herself had provided the patient. When counsel for the Board suggested that this inaccuracy was an example of how clinical judgment or her judgment as a health professional, could be blurred by a desire to help a close friend, the practitioner answered: "Yes. I perhaps should have added in there that she was supported by gifts as well". When further pressed, the practitioner agreed that this was a small example of how her judgment as a health professional could be blurred by her friendship.
91 So far as the sexual relationship in the 2 month period earlier referred to was concerned, the practitioner agreed that she took something positive out of the relationship. She acknowledged that the sexual encounters had an emotional content, although were not "planned". She accepted that there was an emotional content as well as a physical, sexual content to the sexual relations, even though it occurred over a relatively short period.
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92 The practitioner explained that she ceased the sexual activity for religious reasons and also because she had a sense of "shame and betrayal". She explained:
"I remember the instant that I realised I was involved in a sexual relationship with a patient, it just fell into my head, and dawned on me, that I was doing something entirely inappropriate, and that's why it stopped."
93 The practitioner said, however, that it did not occur to her at any earlier stage that it was something she should not have been doing.
94 The practitioner's own assessment of her conduct at the time of the sexual relationship was that it involved conduct that was "inappropriate", because of the doctor/patient relationship. She also accepted it was "morally reprehensible". These observations underscore the practitioner's clear understanding, not merely with hindsight but at material times during the therapeutic relationship, that a medical practitioner of good repute and competency knows that she or he cannot maintain a sexual relationship with a patient.
95 The reason for this was alluded to in the questions put to the practitioner by counsel for the Board and answered by her, concerning the notion of "boundary transgression". It was also explained further by Dr Dunjey, the general practice colleague of the practitioner. It is a notion well understood by the medical practitioner members of this Tribunal, upon whose experience the Tribunal also relies.
96 Dr Dunjey indeed explained that, in his practice, he with other practitioners discuss from time to time the question of boundary setting and the problem of blurring boundaries. Dr Dunjey offered the following guidance about close relationships. He considered there were many principles that come into play depending on the individuals concerned. He considered it depended on the nature of relationships outside the surgery, but that where there is a close relationship sometimes it can be improper to continue the professional relationship. He gave as an example the fact that perhaps a third of the people in his local church are also his patients, but when he is at church meetings they never ask him anything about the surgery. He said there are no difficulties with setting boundaries in these sorts of cases.
97 However, Dr Dunjey said that if he had known that his medical practitioner colleague was in a sexual relationship then that would be improper. He also considered that if he had been aware that his colleague
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- had earlier been in a sexual relationship with a current patient, he would advise against the doctor maintaining the professional relationship. That was because there might be an improper temptation and also because a medical practitioner should not only not do anything improper but not "look to be doing anything improper". In this regard, there was also the reputation of the practice to uphold.
98 Dr Dunjey absolutely accepted the importance of recognising boundary setting issues where a patient has psychological or psychiatric issues, and he accepted that the responsibility for maintaining the boundary lines lies with the doctor, in the first instance at least. Indeed, he accepted it always resides with the doctor. He accepted also that the reason for that is that the relationship is one in which the doctor "holds the power", and has the training and the expertise upon which a patient is dependent.
99 Dr Dunjey was also aware of the concept of "transference" in this medical context and that there is a risk in a doctor/patient relationship that the patient might develop feelings about the doctor, by reason of the dependence and trust they have placed in the doctor. As a result, the patient might project onto the doctor a range of feelings.
100 In relation to doctor/patient relationships that might involve sexual affection, Dr Dunjey explained that, from a medical practitioner's perspective, any sort of consciousness that the patient might be starting to show emotional attachment or love or dependency on the doctor can create a dangerous situation. He also agreed that there is a risk that the doctor, if they become too close to the patient, could lose objectivity and a patient's medical care could actually be compromised. Nonetheless, he agreed that it is still possible for a doctor to have friendships with patients, as indeed he does with patients who are also members of his church.
101 Medical and psychological literature deals extensively with the question of boundary violations. It helps to explain why it is that medical practitioners such as the practitioner and Dr Dunjey have been taught, or instinctively know, that they, as medical practitioners, cannot treat as a patient, a person with whom they have a close personal relationship, and why they cannot develop a close personal relationship with a patient.
102 In an article by Glen O Gabbard MD and Carol Nadelson MD "Professional Boundaries in the Physician-Patient Relationship" JAMA, May 10 1995 - Vol 273, No 18 pp 1445 - 1449, to which the Tribunal was referred, the authors note that professional boundaries in medical practice
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- are not well defined. They suggest that in general they are the parameters that describe the limits of a fiduciary relationship by which one person (a patient) entrusts his or her welfare to another (a doctor) to whom a fee is paid for the provision of a service. The authors note:
"Boundaries imply professional distance and respect, which, of course, includes refraining from sexual involvement with patients. While sexual contact is perhaps the most extreme form of boundary violation, many other physician behaviours may exploit the dependency of the patient on the physician and the inherent power differential. These include dual relationships, business transactions, certain gifts and services, some forms of language use, some types of physical contact, time and duration of appointments, location of appointments, mishandling of fees, and misuses of the physical examination."
"Much of the medical profession's increased interest in boundaries has derived from the awareness of the damaging effects of sexual misconduct. The examination of instances of physician-patient sexual relationships has revealed that sexual exploitation is usually preceded by a progressive series of non-sexual boundary violations, a phenomenon generally described as the 'slippery slope'. (footnote omitted) In this regard, what appear to be trivial violations may in reality be considerably more serious when viewed in the context of a continuum. Attention to nonsexual boundary issues may therefore be an effective way to prevent sexual boundary transgressions. This approach is especially salient because it has become clear that many of the nonsexual boundary violations may in and of themselves cause harm to patients irrespective of the possibility that they may also lead to sexual involvement."
104 While it is generally understood by members of the medical profession that to have sexual relations with a current patient is unethical, some members of the profession would also argue that the ethics of such a relationship between a doctor and a former patient may also be unethical due to the persistence of transference, the unequal power distribution in the original doctor/patient relationship and the ethical implications that arise from both these factors, especially with respect to the patient's autonomy and ability to consent, even when a former patient: see
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- Katherine Hall "Sexualisation of the Doctor-Patient Relationship: Is It Ever Ethically Permissable?", Family Practice (Oxford University Press, 2001) Vol 18, No 5, pp 511- 515.
105 The Tribunal accepts that the problems of transference and the unequal power distribution in a doctor/patient relationship are the core of the reason why there is an ethical rule against medical practitioners treating as a patient, a person with whom they have a close and intimate relationship, or from developing a close and intimate relationship with a person who is a patient. This ethical rule is so important, and so widely accepted in the medical profession, that to breach it ordinarily involves an instance of "infamous" conduct, and not merely "improper" conduct, in a professional respect, to use the language of the current Medical Act 1894 (WA).
106 We referred earlier to the established and accepted test of infamous conduct from Allinson'scase, where it was said that something that would be regarded as "disgraceful or dishonourable, by a practitioner's colleagues of good repute and competency, will constitute infamous conduct in a professional respect". Whilst made in the late 19th century, this statement has stood the test of time and has been applied repeatedly in this State. The text makes it clear that the primary inquiry is to be directed as to how particular conduct is to be regarded by professional colleagues of the medical practitioner, not by the community more generally, and that the conduct complained of must be in pursuit of the practitioner's profession.
107 In Felix v General Dental Council [1960] AC 704 at 720-721, Lord Jenkins made the point that to make good a charge of infamous or disgraceful conduct in a professional respect, it is not enough to show that some mistake has been made through "carelessness or inadvertence", and that there must be "some element of moral turpitude or fraud or dishonesty in the conduct complained of, or such persistent and reckless disregard of [in that case] the dentist's duty in regard to records as can be said to amount to dishonesty for this purpose". In Cranley v Medical Board of Western Australia (Unreported; Supreme Court of Western Australia (Ipp J); No 1211 of 1990; 21 December 1990; BC 9000957), Ipp J referred to Lord Jenkins' remarks with approval.
108 It is also accepted that in the case of negligence or carelessness, the negligence or carelessness may be so gross as to disclose a level of incompetence that would be regarded as "utterly disgraceful", even though there is no moral delinquency involved. That gross carelessness or
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- reckless indifference might constitute infamous conduct, without there being any element of moral turpitude, has been recognised in a number of cases: see for example Basser v Medical Board of Victoria [1981] VR 953; Re Dental Act 1982 (Unreported; SC Tas; No A39/1994; 19 May 1994).
109 In Ex parte Meehan; Re Medical Practitioners Act [1965] NSWR 30 at 36, Sugerman J said of the moral turpitude requirement that:
"In short, whether moral turpitude is a necessary ingredient of 'infamous conduct in any professional respect' is a matter on which no general rule can be laid down, the answer being dependent upon the nature of the conduct which is in question in each instance."
- The Tribunal agrees in particular with the comments of Sugerman J.
110 Observations to similar effect have been made by reference to the statutory expression "serious personal misconduct" that is now used in the current legislation governing the medical professional in the United Kingdom: see Roylance v The General Medical Council[2001] AC 311. In Roylance at [38], the Privy Council noted that the word "misconduct" is a word of general effect involving some act or omission which falls short of what would be proper in these circumstances. The standard of propriety may often be found by reference to the rules or standards ordinarily required to be followed by a medical practitioner in particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word "professional" which links this conduct to the profession of medicine. Secondly, the misconduct is qualified by the word "serious". It is not any professional misconduct which will qualify. The professional misconduct must be serious.
111 Their Lordships in making these observations noted at [37] that there was not any real difference in meaning intended by the change of words from "infamous conduct in a professional respect" used in the Medical Act 1858 (UK) and the current "serious professional misconduct" used in the current legislation.
112 Thus, in Roylance at [39], the Privy Council accepted that professional misconduct extends further than simple clinical misconduct:
"So it is not simply misconduct in the carrying out of medical work which may qualify as professional misconduct. But there must be a link with the profession of medicine. Precisely what
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- that link may be and how it may occur is a matter of circumstances. The closest link is where the practitioner is actually engaged on his practice with a patient. Cases here occur of a serious failure to meet the necessary standards of practice, such as gross neglect of patients or culpable carelessness in their treatment for the taking advantage of a professional relationship for personal gratification."
113 The Privy Council indeed emphasised that serious professional misconduct may arise where the conduct is quite removed from the practise of medicine, but is of a sufficiently immoral or outrageous or disgraceful character: see for example A County Council v W (Disclosure) [1997] 1 FLR 574, where a question arose whether the alleged sexual abuse by a father of his daughter, the father being a medical practitioner, could constitute serious medical misconduct, which it was found it could. Of that case the Privy Council in Roylanceobserved that:
"What is important here is not only the fact that disgraceful behaviour remote from the carrying on of a professional practice may constitute serious professional misconduct, but also that the duty of a doctor to himself, if not to his profession, exists outwith the course of his professional practice. One particular concern in such cases of moral turpitude is that the public reputation of the profession may suffer and public confidence in it may be prejudiced."
114 It is not necessary for the Tribunal in dealing with the present case of the practitioner to attempt to make some detailed evaluation of the practitioner's "moral turpitude" in order to determine the question whether she should be found guilty of infamous conduct or improper conduct in a professional respect. In our view, the relevant misconduct of the practitioner is, as alleged by the Board, that she encouraged and/or committed and was involved in a close personal relationship of a intimate and emotional nature with the patient during a period in which she was the patient's general practitioner. Such conscious personal misconduct in the course of the practitioner's therapeutic relationship with a patient is conduct that doctors of good repute and competency simply do not countenance and consider disgraceful. In our view, that allegation having been made out, the practitioner should be found guilty of infamous conduct in a professional conduct.
115 The reason this misconduct is considered disgraceful, is that it is conduct which puts at risk the proper therapeutic relationship between the
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- doctor and the patient. As we have explained, a proper therapeutic relationship between a doctor and a patient has as its objective the healing of the patient. To allow a close and intimate personal relationship to intrude into that therapeutic relationship is to put at risk the likelihood of that objective being achieved. Rather, as is generally accepted, to allow such a relationship to intrude on the therapeutic relationship may do positive harm to the health of the patient. In this case, ultimately, the evidence shows that the patient attempted self-harm when, some years after the relationship first commenced, it appeared to the patient that the relationship had irretrievably broken down.
116 Medical codes of ethics in Australia generally and sometimes specifically deal with the question of improper relationships between doctor and patient:
• The Duties of a Medical Practitioner Registered with the Medical Board of Western Australia, Medical Board Policy Issued August 2003 states the general principle, amongst others, "Make the care of the patient your primary concern" and "Respect the right of patients to be fully involved in decisions about their care" and "Avoid abusing your position as a medical practitioner"; and then when dealing with professional/ethical obligations at cl 4.8 states that:
"You must not abuse your patient's trust. You must not, for example:
• use your position to establish improper personal relationships with patients or their close relatives."
• A 1994 Position Statement of the Australian Medical Association, Sexual Conduct Between Doctors and Their Patients, states:
"The doctor who engages in any type of sexual activity with the patient is guilty of professional misconduct.
- The patient/doctor relationship must be one of absolute confidence and trust. Patients and their families must be confident that doctors will not take advantage of the professional relationship to indulge in sexual behaviour of any type. Seeking to shift the blame from the doctor to the patient is not acceptable.
Patients may feel vulnerable when seeking treatment, assistance and guidance. Because the patient/doctor relationship could be perceived as unequal, and because breaches of this relationship can cause psychological damage to patients, there must be no exploitation of patients or abuse by doctors of their authority".
- • The Medical Board of Queensland's Statement … on Sexual Relationships Between Health Practitioners and Their Patients, states:
"All forms of sexual behaviour in a relationship between health practitioner and a current patient are improper and unprofessional."
The Statement also refers to -
• the fact that patients usually perceived a power differential;
• caution against any exploitation for the gratification for the practitioner;
• says that dual relationships are not appropriate and other relationships must be avoided to reduce the likelihood of role confusion and boundary violation;
• says that sexual behaviour with a patient may affect the clinical judgment of the health practitioner.
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- misconduct of the practitioner and thereby to suggest that the conduct of the practitioner should be characterised as something less than infamous.
118 For example, in Richter v Walton (Unreported, Supreme Court of New South Wales, CA 40309 of 1993, 15 July 1993, BC 9301786), a doctor sexually assaulted a patient during a consultation and in Re N (Unreported decision of the Medical Board of WA, delivered 8 June 2005; No 1987 - 138), the practitioner was found to have identified his patient within the first or second consultation concerning her son and actively pursued a personal friendship with her with a view to forming a sexual relationship. The Board considered his conduct was deliberate, well planned and designed to gratify his inclination, desires and wishes without regard for other interests.
119 However, the fact that a practitioner has not acted in a criminal or highly opportunistic way does not mean that her or his misconduct should not be characterised as infamous conduct.
120 There may be a debate, in any contemporary era, whether the standards of a past era remain relevant or entirely relevant in the present era. The topic of sexual misconduct by medical practitioners and contemporary values has been interestingly addressed in an article by Stephen Smith, "Doctors, Sexual Misconduct and Contemporary Values" Journal of Law and Medicine, November 1997, Vol 5, pp 178-187. The author identifies what he calls the "old approach", namely, a very restrictive approach on the basis of which it is professional misconduct for a doctor ever to engage in a sexual relationship with a patient or indeed with a former patient or the spouse of a patient: as for example in McCoan v General Medical Council [1964] 1 WLR 1107; De Gregory v General Medical Council [1961] AC 957; Hoile v Medical Board of South Australia (1960) 104 CLR 157. The author suggests that changing mores, the fact that many more women are now in the workforce than in earlier times, and the fact that the professions do not now enjoy the same esteem and deference as they formerly did, all go to explain why the strict approach taken in these cases is not appropriate in contemporary times.
121 However, the author also notes the issue of transference to which we have already referred, can be a particular problem in patients who have a history of abuse or psychological trauma. The author notes that doctors and other professional therapists are trained and expected to beware of transference and to keep it under control.
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122 The author considers there is something like a consensus in favour of a strong professional ethical rule against romantic liaisons between doctor and patient while that relationship subsists. The author suggests that the debate has now moved to examining the circumstances where professional ethics will permit an amorous attachment after the professional relationship has been terminated.
123 The author then refers to what he calls the "modern approach", as to which he identifies some recent case law which seems to interpret misconduct in the light of contemporary ethical codes, rather than in the terms of what he calls the "moral absolutes" of a former era. He refers, in this context, to the case of Peeke v Medical Board of Victoria (Unreported; Supreme Court of Victoria; (Marks J); No 10170 of 1993; 19 January 1994), a decided case that both the counsel for the Board and the practitioner refer to in their submissions to the Tribunal.
124 The relevant facts of the case concerning Dr Peeke were that he was consulted by a female patient of long standing. She complained of stress and anxiety. She broke down in tears. Dr Peeke comforted her, physical contacts ensued and sexual relations took place at her behest in the surgery. At the time (1988), he was in his late 50's and she in her mid-30's. Both were single. They then maintained an active sexual relationship from 1988 to 1992 when the patient complained to the Medical Board of Victoria. The Board found the lesser allegation of "professional misconduct" proven on the facts and suspended the practitioner for six months. He then appealed to the Supreme Court which substituted a reprimand.
125 Marks J, who heard the appeal in the Supreme Court of Victoria, noted that this was not a case where a doctor had taken advantage of a patient in a subservient position in order to exploit her. Here the patient "made the offer of her body" and she sought what the Judge called "the active perpetuation of the relationship". The matter only came to the Board's notice because she made a complaint four years after the affair commenced, and only then because the doctor wished to bring it to an end. Her complaint, as Marks J noted, was an act of revenge. In the Judge's view, this was not a case where the public needed protection from the doctor, even though his conduct was a lapse of medical standards. The court thought that a reprimand was appropriate in place of suspension.
126 By contrast, in Craig v Medical Board of South Australia (2001) 79 SASR 545 the practitioner encouraged and maintained an intimate
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- personal friendship before active treatment ceased. The practitioner was a psychiatrist. Subsequently, a relationship developed. The Court found that it was improper to use the professional relationship to cultivate a friendship for the doctor's own gratification.
127 In Alroe v Medical Board of Queensland [2004] QCA 364, the Medical Board of Queensland found a psychiatrist guilty of unsatisfactory professional misconduct – in this case infamous conduct.
128 In Cato v Medical Board of Victoria (Unreported, Supreme Court of Victoria, 29 June 1985, BC 8500201), a doctor who had engaged in a sexual relationship with a patient was found guilty of infamous conduct.
129 In Re B (Unreported decision of the Medical Board of Western Australia; Lib No 1392-48; 18 September 2001), the practitioner was found guilty of improper, not infamous, conduct in a professional respect for agreeing to meet his patient, at her request after she was admitted to a psychiatric clinic, for coffee and then, after terminating the professional relationship, commenced an intimate relationship.
130 In A Practitioner v The Medical Board of Western Australia [2005] WASC 198, the Supreme Court of Western Australia (Commissioner K Martin QC) upheld the practitioner's appeal against the Medical Board's finding of infamous conduct, and substituted a finding of improper conduct, in relation to a practitioner's sexual misconduct with a patient. The patient plainly had psychological and/or psychiatric problems including a history of childhood and sexual abuse. The practitioner was aware of a psychiatrist's findings that she had borderline personality characteristics. However, the practitioner, at material times, had formed and held beliefs of a religious or spiritual nature that included his belief that God had a special purpose for the patient and that she was the "chosen one" and that he was "to be her brother and she was to be your sister". It was alleged the practitioner's clinical judgment was likely to be impaired in the light of his beliefs and that he should have terminated the therapeutic relationship. The practitioner was found guilty of permitting the development of a close personal relationship of an emotional and romantic nature.
131 While there may possibly be, as Mr Smith suggests in his paper, a different approach to some complaints of sexual misconduct by medical practitioners in the contemporary era, compared with a much stricter approach to the question of sexual misconduct displayed in earlier decided cases, the decision of Marks J in the Peeke case is not particularly
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- pertinent to the circumstances of the practitioner before this Tribunal, and the other cases referred to do not suggest a markedly different approach between eras.
132 While it might be contended that, in an appropriate case where a mutual romantic and/or sexual attachment between a doctor and a patient appears neither harmful nor exploitative, it may be open to find that either the conduct is not infamous or does not require the imposition of a penalty such as striking off the register or suspension from the register in order to protect the public, in the case of the practitioner now before the Tribunal is not such a case.
133 While, unlike some of the instances to which we have referred, the practitioner here did not "prey" upon a patient for her own personal gratification and did not assault the patient in a way that would constitute a criminal offence, the simple reality is that the practitioner permitted the relationship with the patient to develop, allowed that relationship to develop into one whereby sexual relations were engaged in, and plainly gained physical, sexual and emotional comfort from that sexual relationship and thereafter maintained a close, personal and intimate relationship with the patient over a number of years which continued to give her, and the patient, continuing emotional support at material times during the maintenance of the therapeutic relationship.
134 In the practitioner's case before the Tribunal, there is no suggestion that the practitioner's mental health or marital difficulties at relevant times impaired her capacity to form a medical view or ethical judgment. (We should observe in passing that during the maintenance of the therapeutic relationship whether or not the Court in A Practitioner v The Medical Board of Western Australiashould be considered right to have taken the mental health and other personal difficulties of the practitioner into account in substituting a finding of improper conduct in a professional respect for a finding of infamous conduct, is not an issue that requires determination in the present case).
135 It is relevant to note what the practitioner wrote on the birthday card she gave the patient on 16 September 1996. She regarded the patient as a "heaven-sent gift". This tends to confirm the point, acknowledged by the practitioner, that she gained considerable emotional comfort – or gratification in a general sense of the word – from her relationship with the patient.
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136 Similarly, in relation to a gift of jewellery, the box was inscribed, "To my darling with love". These are words of tender affection. They support the view that the practitioner actively encouraged and permitted, not merely permitted in a passive sense, the consolidation of the relationship between her and the patient.
137 The Tribunal accepts the submission of the counsel for the Board that the Tribunal does not need to make a finding that puts any particular label on the relationship between the practitioner and the patient during the relevant period. What is important is that they had a relationship of intimacy at a time when the practitioner's therapeutic relationship with the patient endured; something that the practitioner should not have allowed. It was a relationship of intimacy from which the doctor received comfort or gratification generally understood in a wide number of ways. The relationship was not one that can in any sense properly be categorised as a sisterly relationship simply born out of the compassion generated by the therapeutic relationship. The suggestion that the practitioner and the patient were merely flatmates or housemates is far too detached and neutral a description to describe the true nature of the relationship.
138 The Tribunal accepts the submission that it cannot be said that the practitioner and the patient simply lived together as friends, as sisters. The evidence shows that the practitioner and the patient shared a bed regularly, supported each other emotionally, gave gifts and exchanged terms of endearment and maintained a very close, personal and intimate relationship in which each gained material and emotional support. It is not necessary for the Tribunal to intrude further into the nature of that relationship by attempting to place a label on it, but certainly it was a relationship that was not merely sisterly, not merely that of flatmates, but very much like the relationship one would expect of two persons who are deeply committed to each other, albeit that it lacked a sexual component of the type the two had engaged in earlier for two months in 1997.
139 Exactly how persons socially acquainted with the practitioner and the patient viewed or understood the nature of their relationship is only partially helpful to the Tribunal in this respect. Few of these persons directly inquired of the two of them as to what the true nature of the relationship was. Much was left to be inferred or implied from their living together and the apparently close relationship they enjoyed. Some witnesses had had a pastoral or therapeutic relationship with the practitioner and the patient, or one or the other. Others commented as to whether they thought one or the other, in the home environment, was the
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- dominant partner in the relationship. This too seemed an unprofitable inquiry, from the Tribunal's point of view.
140 A general practitioner consulted by the patient said the patient had made reference to her "ex partner Dr Smith". This was in 2003. Another witness following discussions with the patient, was told by the patient that she and the practitioner were not in a "same-sex" relationship, but before that it had occurred to the witness that they might have been. What did become apparent from this type of evidence, however, was that the practitioner and the patient were considered to have a special relationship. To the extent that any impressions can be drawn from much of this evidence, it probably is that the patient in her representations to other medical practitioners or therapists, after her relationship with the practitioner had broken down, tended to represent herself as being or having been in a close personal relationship with the practitioner during the relevant period.
141 Nor, do we think does it help much to attempt to characterise the practitioner's wrongful conduct as being "deliberate" or "subconscious" or the like. The simple fact of the matter is the practitioner knew what she was doing, chose to allow the relationship with the patient to develop in the way it did and, at the time the sexual relationship developed and persisted for two months, well and truly understood that she should not have been engaged in it. Even before that sexual relationship developed, the practitioner was aware that her relationship with the patient was ceasing to be entirely professional and told the patient in February 1996 that the patient should see another doctor. When this advice was not acted upon by the patient, the practitioner did not insist that the patient see another doctor. Instead, she allowed the relationship to develop to the point where, in March 1997, she commenced a sexual relationship with the patient over the two month period.
142 It is also not to the point that, to some extent, the patient may have been a willing participant in the relationship with the practitioner. The simple fact is that the relationship commenced not after the therapeutic relationship had been terminated, but in late 1995 and during 1996 and 1997 when the patient was suffering from depression and at a time when the practitioner had become aware of the patient's report of sexual abuse within her family when she was younger. In other words, the personal relationship, which in 1997 culminated in a sexual relationship, developed at a time when the patient was plainly vulnerable to exploitation. While, as we have said, it cannot be said that the practitioner "preyed" upon the patient, the fact is that the ethical rule exists to ensure that such
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- relationships do not develop because of the risk of harm that might ultimately flow to the patient.
143 Indeed, in this case, the practitioner accepts that the patient was damaged by the relationship. In that regard it is not to the point to contend, as counsel for the practitioner does, that the extent of that damage cannot be ascertained in light of the patient's pre-existing depression and other traumatic events in her early life, including the sexual abuse. It is exactly because of that difficulty in ascertaining what contribution a medical practitioner's conduct might make to the damage a patient might suffer if a personal relationship is allowed to develop that a practitioner has to be absolutely cautious not to develop a close personal, intimate relationship with a patient. The problems of transference, imbalance of power and vulnerability to exploitation are ever present.
144 While there might be circumstances in the contemporary era, when compared with those of earlier times, that permit a body such as the Tribunal to find that sexual misconduct should be characterised as something less than infamous conduct in a professional respect (or its equivalent), what is plainly common in all eras is a concern that sexual misconduct may constitute a breach of trust, misuse of power and exploitation of vulnerability: see Re A Medical Practitioner [1995] 2 Qld R 154 per Dowsett J.
145 In the circumstances of the practitioner before the Tribunal, the Tribunal finds:
• There can be no doubt that the practitioner breached the trust of the doctor/patient relationship when she allowed the personal relationship she had begun to develop with the patient to become a sexual relationship for a two month period.
• It was a misuse of the medical practitioner's power to allow this circumstance to develop in the way that it did.
• That the relationship occurred at a time when the patient was clearly vulnerable to exploitation, given the depression she suffered and the background of sexual abuse of which the practitioner became aware.
• That thereafter for the practitioner to maintain a close personal and intimate relationship with the patient while continuing to treat the patient, was quite inappropriate.
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146 The ethical requirement that a medical practitioner not have sexual relations with a patient was plainly breached in this case. So too was the ethical requirement that a doctor not treat as a patient, a person with whom they maintain a close personal and intimate relationship.
147 In these circumstances, the Tribunal finds the practitioner guilty of infamous conduct in a professional respect in that she encouraged and/or permitted and was involved in a close personal relationship of an intimate and emotional nature with the patient during a period in which she was the patient's general practitioner.
Penalty
148 In these particular circumstances where the Tribunal has found the practitioner guilty of infamous conduct in a professional respect, the Tribunal considers there is no real alternative but that the registration of the practitioner's right to practise be suspended.
149 We have adverted to a number of the matters personal to the practitioner which go perhaps to explain her frame of mind when she first engaged in the sexual misconduct that she frankly acknowledges. However, none of what we have heard excuses the misconduct. In the Tribunal's view, that misconduct and the maintenance of a close and intimate relationship with the patient thereafter, while she continued to be her doctor, was also quite inappropriate.
150 A mere reprimand is not a sufficient penalty in a case such as this. Similarly, the imposition of a fine would, in the Tribunal's view, be a totally inadequate way of communicating the censure that is required for the practitioner's misconduct. In the end, the importance of maintaining the standards of the medical profession and the importance of the ethical rule that a practitioner not maintain a close and intimate personal relationship with a patient, requires of the practitioner's registration as a medical practitioner to be suspended. We consider suspension for a period of 12 months is appropriate.
Conclusion and Orders
151 For the reasons given above, the Tribunal would make the following orders:
1. The Tribunal finds Leonie Smith (the practitioner) guilty of infamous conduct in a professional respect in that she encouraged and/or permitted and was involved in a close personal relationship of an intimate and emotional nature
- with the patient during a period in which she was the patient's general practitioner.
- 2. The registration of the practitioner under the Medical Act 1894 (WA) be suspended for 12 months.
152 The Tribunal will hear from the parties as to:
• The date on which the suspension should commence.
• The costs of the proceedings.
- I certify that this and the preceding [152] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT
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