| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : MEDICAL PRACTITIONERS ACT 2008 (WA) CITATION : MEDICAL BOARD OF WESTERN AUSTRALIA and WOLMAN [2011] WASAT 69 (S) MEMBER : JUDGE R MACKNAY QC (SUPPLEMENTARY DEPUTY PRESIDENT) DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)
DR E ISAACHSEN (SENIOR SESSIONAL MEMBER)
MS D ZAMBOTTI (SENIOR SESSIONAL MEMBER)
HEARD : 3 JUNE 2011 DELIVERED : 21 APRIL 2011 SUPPLEMENTARY
DECISION : 24 JUNE 2011 FILE NO/S : VR 80 of 2009 BETWEEN : MEDICAL BOARD OF WESTERN AUSTRALIA Applicant
AND
ROBERT WOLMAN
Respondent
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Catchwords: Professions - Medical practitioners - Disciplinary proceedings - Acting improperly - Penalty - Undertaking offered not to practise in a particular area - Costs Legislation: Medical Practitioners Act 2008 (WA), s 76, s 76(1), s 76(1)(b)(iii), s 76(1)(e), s 116, s 123 Result: Practitioner reprimanded, fined $4,000, and to give an undertaking to applicant not to carry out hypnosis on any patient Category: B
Representation: Counsel:
Applicant : Mr RW Richardson and Mr MC Davies
Respondent : Mr J Ley and Mr EA Panetta
Solicitors:
Applicant : Tottle Partners
Respondent : Panetta McGrath Lawyers
Case(s) referred to in decision(s):
Craig v Medical Board of South Australia (2001) 79 SASR 545
Jemielita v Medical Board of Western Australia (unreported, WASC, Library No 920584, 13 November 1992)
Medical Board of Western Australia v Wolman [2011] WASAT 69
Motor Vehicle Industry Board v Dawson [2006] WASAT 8
NSW Bar Association v Evatt (1968) 117 CLR 177
(Page 3)
REASONS FOR DECISION OF THE TRIBUNAL:
Background 1 On 21 April 2011 the Tribunal delivered reasons for decision in which a finding was made that the respondent acted improperly within the meaning of s 76(1)(b)(iii) of the Medical Practitioners Act 2008 (WA) (MP Act), in that he embraced a female patient whilst she was under hypnosis, and in circumstances where he did not have her consent so to do. 2 See Medical Board of Western Australia v Wolman [2011] WASAT 69. 3 At the same time, we found the respondent was not guilty in relation to two other allegations involving the same patient, one of sexual misconduct and one of improper conduct. 4 The Tribunal must now determine the consequences which ought to flow from its findings.
Penalty 5 The Tribunal's powers in relation to penalty are set out in s 116(1) of the MP Act, which relevantly states: (1) If, in a proceeding commenced by an allegation under this Act against a medical practitioner, the State Administrative Tribunal is of the opinion that a disciplinary matter exists in relation to the person, the Tribunal may do one or more of the following … (c) caution or reprimand the person; … (e) order the person to undergo counselling specified in the order; (f) order that the person comply with such conditions as the Tribunal may impose on the registration of that person; … (i) order the person to pay a penalty not exceeding $25 000; (Page 4)
6 The applicant submits that given the Tribunal's findings, it is appropriate that the respondent be reprimanded and that a fine also be imposed. 7 In making that submission the applicant alludes to a number of the Tribunal's findings, those including a finding that on a prior occasion the respondent manipulated the patient's back whilst she was under hypnosis, and without obtaining her consent, and others said to relate to the nature and seriousness of the conduct the subject of the present application. 8 It is further submitted by the applicant that the incident would have been extremely frightening for the patient, whilst the respondent showed a lack of insight into, or acceptance of, the inappropriate nature of his conduct. 9 On behalf of the respondent, 15 signed references, as well as one which was unsigned, were submitted, all but one from patients, and the other being from a person who was present whilst the respondent saw female patients during a period prior to the Tribunal's decision, that being pursuant to a restriction then in force on his right to practise. 10 The author of each reference claims knowledge of the Tribunal's finding, whilst in the case of patients the period of time each has seen the respondent is said to range between about two and a half and 16 years. 11 All speak highly of the respondent. 12 Counsel points out on behalf of the respondent that he has practised medicine for about 26 years, without any other adverse finding being made against him. 13 The necessity to undergo the proceedings, the adverse finding, the obligation to see female patients with a chaperone and to refrain from hypnosis for almost two years, and his decision not to continue with hypnosis, are amongst other matters put forward in relation to penalty. 14 The respondent concedes that a reprimand would be appropriate. (Page 5)
15 However it is submitted that the Tribunal ought not impose a fine. 16 As to the issue of whether a fine ought be imposed, the Tribunal has previously pointed out that the purpose of the MP Act, as revealed by the objects set out in s 3, is the protection of consumers of medical services. 17 That is a statutory enshrinement of a principle previously identified by courts as being relevant to disciplinary proceedings where professional misconduct is alleged, and with the penalties associated with such. 18 Thus in Jemielita v Medical Board of Western Australia (unreported, WASC, Library No 920584, 13 November 1992) Owen J said, in relation to the imposition of a penalty: The general principles which are applicable are not difficult to state. The primary consideration is the public interest. The consequence of an adverse finding is drastic for the practitioner. The purpose of providing such a drastic consequence is not punishment of the practitioner as such, but protection of the public. The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules and indifferent to rudimentary professional requirements: see Pillai v Messiter (No 2) (1989) 16 NSWLR 197 per Kirby P at 201. There is also a need to maintain the high standards and good reputation of the profession generally in the eyes of the community: see Eiderman v General Dental Council (1976) 1 WLR 330 at 333. A further consideration is the need to deter others who may be of a like mind to transgress in the future: see Giordano v Medical Board (1983 84) 36 SASR 83 at 87. In applying these considerations a tribunal must also bear in mind the warning delivered by Devlin J in Hughes v Architects Registration Council of the United Kingdom [1957] 2 QB 550 at 563: 'There is something more important than the standing of a profession about which the council is naturally and properly concerned. There is the right of every man to earn his living in whatever way he chooses unless by the law or by his own voluntary submission his way is taken from him.' There is one final matter of a general nature which I should mention. The respondent has a wide discretion in relation to penalty. The mere fact that there has been a finding of infamous conduct or of gross carelessness or incompetency, does not mean that any particular penalty must follow as of course. An act or omission may constitute infamous conduct but that does not necessarily mean that striking off is the appropriate penalty. The respondent is required to consider all of the circumstances surrounding the act or omission and to exercise the discretion accordingly (140 142). (Page 6)
19 Similarly in Craig v Medical Board of South Australia (2001) 79 SASR 545, Doyle CJ, after setting out a passage of the judgment of the High Court in NSW Bar Association v Evatt (1968) 117 CLR 177, said: Apart from emphasising that the purpose of disciplinary proceedings is the protection of the public, and not punishment for wrongdoing, this passage makes the point that sometimes the protection of the public will require the making of an order with a greater adverse effect on the practitioner than might be warranted if punishment alone were the relevant consideration. The protection of the public did not permit mercy to be shown in that case. This statement by the Court has often been cited as stating the basis upon which orders are made by professional disciplinary tribunals. A contrast is often drawn between orders made for the protection of the public, against professionals who have departed from proper professional standards, and orders or sentences by way of punishment as part of the administration of the criminal law. While there is a fundamental difference between an order made by a professional disciplinary tribunal for the protection of the public, and a punishment imposed by a court administering the criminal law, disciplinary orders made by professional bodies may nevertheless have elements in common with criminal sanctions. In the case of a professional disciplinary tribunal, an obvious type of order protective of the public is an order cancelling the registration or recognition of a person as a member of a profession. Such an order removes the right to practise in the profession, thereby protecting the public against a person found unfit to be a practitioner. And, as Evatt shows, such an order will be made even though, if punishment of the practitioner were the only consideration, considerations of mercy might lead to a less severe order. In other cases the protection of the public or the public interest may justify an order intended to bring home to the practitioner the seriousness of the practitioner's departure from professional standards, and intended to deter the practitioner from any further departure. A fine might well be imposed with this object. An order imposing a fine might look like a punishment imposed by a court exercising criminal jurisdiction, but in professional disciplinary proceedings it is imposed on a different basis. An order might also be made in professional disciplinary proceedings to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. In the latter case the order is made in part to protect the profession, by demonstrating that the profession does not allow certain conduct. This, in the end, is also in the public interest. I make these points merely to emphasise that the protection of the public has various aspects. The public may be protected by preventing a person (Page 7)
from practising a profession, by limiting the right of practise, or by making it clear that certain conduct is not acceptable. These are merely illustrations of the sort of order that may be called for [43] - [48]. 20 In the present case, and as the Tribunal has found, the respondent on a previous occasion failed to seek the permission of his patient prior to touching her when under hypnosis. 21 Although that was not the subject of any complaint, and he is not to be dealt with for it, the Tribunal accepts the applicant's submission that it is a relevant circumstance when assessing the nature and quality of the respondent's action on the present occasion. 22 As to the consequences of that action the Tribunal has already found that the patient misinterpreted the hug, and would find that very considerable distress was caused to her as a result. 23 That was an entirely foreseeable outcome, given the patient's general vulnerability, the circumstances of the consultation, including in particular the discussion about her recent unhappy sexual experience, her state of hypnosis, and the risks associated with a touching when she was in that state. 24 The Tribunal accepts the respondent's acknowledgement of his error, and takes into account the matters put forward on his behalf, including his hitherto unblemished record of service and the regard expressed by his patients. 25 Nonetheless, at the end of the day the Tribunal is of the view that in addition to a reprimand it is necessary and appropriate to impose a fine, in order to bring home both to the respondent and other medical practitioners the Tribunal's view of the seriousness of the conduct, and as a mark that such conduct is not acceptable professional conduct. 26 Taking into account all of the circumstances we fix the sum of $4,000.
Other orders 27 The applicant seeks an order that the respondent attend a course which deals with professional boundaries. 28 That is opposed by the respondent. 29 After due consideration, the Tribunal has decided not to impose such a requirement. (Page 8)
30 The applicant also submits that a condition be imposed on the respondent's registration as a medical practitioner that he not engage in hypnosis with any female patient in the course of his medical practice. 31 In the alternative the applicant seeks an order that the respondent not be permitted to engage in hypnosis in that way until he has, at his own expense, attended a course run by the Australian Society of Hypnosis Ltd, obtained a diploma of hypnosis, and become a full member of that society. 32 In response the respondent reiterates that he has ceased to utilise hypnotherapy in the course of his practice. 33 Further, the respondent says he would be prepared to give an undertaking to the applicant that he cease the practice of hypnosis forthwith, on the basis that if in the future he wished to withdraw that undertaking he would give the applicant 30 days notice of his intention so to do. 34 In the event that the respondent did give an undertaking in appropriate terms to the applicant the Tribunal would accept that in lieu of any necessity to make an order. 35 In that regard, in our view, the respondent would need to give either an unconditional undertaking or one couched in terms that would permit its withdrawal only after he satisfied the board or its successor that he had completed appropriate training. 36 In coming to that decision the Tribunal is mindful that the respondent failed to keep any record of prior hypnosis of the patient here, so that he was unable to provide accurate information as to the precise nature and the extent of that treatment, that he previously manipulated the patient's back while she was under hypnosis, without her consent, and failed to provide satisfactory evidence of membership of any appropriate body. 37 We give the applicant liberty to apply, and in the event no satisfactory undertaking is offered within 14 days of the publication of these reasons the applicant can renew its application for an order.
Costs 38 The general approach of the Tribunal to the question of costs in vocational regulation was set out by Barker J in Motor Vehicle Industry Board v Dawson [2006] WASAT 8: (Page 9)
Where proceedings are commenced by a vocational regulatory body (such as the Board) against a person affected by a vocational Act (such as Mr Dawson), the Tribunal will usually make an order for costs in favour of the vocational regulatory body where it is successful in obtaining an order in the proceedings. In Medical Board of Western Australia v Roberman [2005] WASAT 81(S), at [30] the Tribunal (Judge John A Chaney SC, Deputy President, presiding member) observed in relation to s 87(2) that: 'Where a regulatory authority successfully brings a complaint of conduct which, if proved, justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. That is because such bodies perform a function which promotes the public interest, and usually with limited resources. The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application. The question of an award of costs is, of course, a matter of discretion to be exercised in the circumstances of each case' [44] [48]. 39 Here the applicant was partly successful. 40 That was also the case in Roberman, where the board made three allegations, one of which was successful. The practitioner there was ordered to pay the board one third of its costs. 41 The respondent does not seek any costs order here, and does not oppose an order being made in the applicant's favour. 42 It is however submitted that order ought be for only 25% of the applicant's costs. 43 The applicant seeks an order for 50% of its costs. 44 In relation to this issue the respondent submits that most of the hearing was devoted to the allegation of sexual misconduct whilst the allegation that the respondent embrace the applicant without her consent was the least significant of the three allegations made, and was only included as a discrete matter in August 2010. 45 The Tribunal is of the view that there was considerable overlap in the evidence here, the three allegations arising out of a single consultation (Page 10)
with one patient, whilst it was necessarily always the applicant's contention that the respondent embraced the patient without her consent. 46 A significant amount of the expert evidence addressed the issue on which the applicant was successful. 47 The Tribunal accepts that the respondent is not to be required to pay the applicant's costs where it was not successful. 48 In all the circumstances we fix costs at 35% of the applicant's costs, those to be assessed if not agreed, and to be paid by the respondent.
Orders 49 In summary, the Tribunal makes orders as follows: 1. The respondent is reprimanded. 2. The respondent is fined the sum of $4,000. 3. The applicant have liberty to apply at the expiration of 14 days in relation to an order that the respondent not practise hypnosis on any patient. (Page 11)
4. The respondent pay 35% of the applicant's costs, such to be assessed if not agreed. |