MEDICAL BOARD OF WESTERN AUSTRALIA and WOLMAN
[2011] WASAT 69
•21 APRIL 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: MEDICAL PRACTITIONERS ACT 2008 (WA)
CITATION: MEDICAL BOARD OF WESTERN AUSTRALIA and WOLMAN [2011] WASAT 69
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: 18 JANUARY 2011
DELIVERED : 21 APRIL 2011
FILE NO/S: VR 80 of 2009
BETWEEN: MEDICAL BOARD OF WESTERN AUSTRALIA
Applicant
AND
ROBERT WOLMAN
Respondent
Catchwords:
Professions' disciplinary proceedings - Medical practitioner - Allegations of improper conduct and sexual conduct - General practitioner - Patient embraced or hugged whilst under hypnosis - Whether patient consented to hypnosis and distressed prior to embrace - Whether practitioner should have advised patient of intention to touch or brought her out of hypnosis before touching - Turns on own facts
Legislation:
Criminal Code Act 1913 (WA), s 2, s 24, s 36, Ch 5
Medical Practitioners Act 2008 (WA), s 3, s 76, s 76(1), s 76(1)(b)(iii), s 76(1)(e), s 116, Pt 6
Result:
The application is adjourned to a directions hearing
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):
Briginshaw Briginshaw (1938) HCA 34; (1938) 60 CLR 336
Cranley v The Medical Board of Western Australia (Unreported, WASC, Library No 8668, 21 December 1990).
Geraldton Fishermen's Co‑operative Ltd v Munro [1963] WAR 129
Harper v Racing Penalties Tribunal (Unreported, WASC, Library No 950040, 8 February 1995)
He Kaw The v The Queen (1985) 157 CLR 523
Maynard v Racing Penalties Tribunal (1994) 11 WAR 1
Medical Board of Western Australia v Richards [2010] WASAT 94
Ong v The Dental Board of Western Australia (Unreported, WASCA, Library No 950442, 25 August 1995)
Pillai v Messiter (No 2) (1989) 16 NSWLR 197
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Medical Board of Western Australia alleged that in the course of a consultation with a patient, Dr G, the respondent, Dr Robert Wolman, hypnotised Dr G, without first obtaining her consent and then, having brought Dr G to a standing position, without seeking permission to touch her, hugged her, and in the course of so doing, rubbed his erect penis against her body.
The Medical Board alleged that the respondent was guilty of improper conduct in the course of practice and of sexual misconduct, each being contrary to s 76 of the Medical Practitioners Act 2008 (WA).
Expert evidence was led by each of the parties in relation to hypnosis, including evidence as to involuntary hypnosis and the reliability of recollection of a person in relation to events that occurred whilst that person was under hypnosis.
Having considered all the evidence, including the evidence of the patient and of the respondent, as well as that of the expert witnesses, the Tribunal concluded that the Board had failed to make good its allegation of sexual misconduct, but had made good one allegation that the respondent acted improperly when he failed to obtain the patient's permission prior to touching her in a hug.
Allegations
The Medical Board of Western Australia (Board) alleges that on 12 May 2009 the respondent, Dr Robert Wolman, (Dr Wolman) a medical practitioner:
1.1acted improperly within the meaning of s 76(1)(b)(iii) of the Act in that the respondent hypnotised the respondent's patient Dr G (the patient) without her consent;
1.2engaged in sexual misconduct towards the patient within the meaning of s 76(1)(e) of the Act;
Particulars
The applicant relies on the matters referred to in paragraphs 6, 7 and 8 of the statement of facts which is Annexure A to this application.
1.3acted improperly within the meaning of s 76(1)(b)(iii) of the Act in that the respondent embraced the patient whilst she was under hypnosis, and in circumstances where he did not have her consent to embrace her.
Particulars
The applicant relies on the matters referred to in paragraphs 7.1 to 7.4 and paragraph 9 of the statement of facts which is Annexure A to this application.
The relevant paragraphs in Annexure A read:
6.During the 2009 consultation the respondent hypnotised the patient without the patient's consent.
7.After the respondent had hypnotised the patient referred to in paragraph 6 above, the respondent:
7.1removed the handbag and backpack the patient was wearing over her shoulders and took some papers the patient was holding out of her hands;
7.2guided the patient from a seated position into a standing position;
7.3placed the patient's arms around the respondent;
7.4held the patient tightly or alternatively embraced the patient with the patient's face pressed against the respondent's upper thorax;
7.5massaged the patient's lumbar sacral spine while holding the patient and breathing heavily;
7.6rubbed himself against the patient's groin.
8.Whilst the respondent rubbed himself against the patient, as described in paragraph 7.6 above, the respondent's penis was erect under his clothing and was felt by the patient against her groin.
9.The respondent did not at any time seek or obtain the patient's consent to hold the patient tightly or embrace her whilst she was under hypnosis.
It could be thought, given the ambit of the particulars, that the third allegation is largely a restatement of the second, made under another statutory head, but that is not the case, and in a substituted amended statement of issues, the Board sets out as an issue a question whether 'if the respondent did hold the patient tightly or alternatively embrace the patient during hypnosis and without consent', he was by virtue of that action alone guilty of improper conduct (para 8).
In the same document the board relevantly contends (para 27) that 'on the basis of the expert evidence …', such conduct would amount to a deviation 'from the standards to be expected of a general practitioner'.
It is then stated in the following paragraph:
It is contended that to hold a patient tightly or alternatively embrace a patient under hypnosis is a significant breach of appropriate professional boundaries, and that the failure to obtain consent to embrace her is a circumstance of aggravation of the seriousness of that transgression.
In response, and in a reamended statement of issues, facts and contentions, the respondent raises a general issue as to the reliability of the evidence of Dr G as to the events of 12 May 2009, on the basis that she was then either under hypnosis or in an 'altered state of consciousness'.
As to the allegation that Dr G was on 12 May 2009 hypnotised without her consent the respondent denies such and at (para 16):
(a)the respondent says that, at the consultation, he attempted to hypnotise the patient;
(b)the respondent says that, at the consultation, and unbeknown to him, the patient was in an altered state of consciousness, which made it impossible for him to hypnotise her;
(c)the respondent denies that he hypnotised the patient and denies that he hypnotised the patient without her consent;
(d)alternatively, if, which he denies, he hypnotised the patient and did so without her consent, the respondent says that he believed, prior to attempting to hypnotise the patient, that she had agreed to him hypnotising her.
In relation to the allegation that he engaged in sexual conduct at that time the respondent at (para 17):
…
(d)says that while the patient was under hypnosis, or in an altered state of consciousness, and was seated, and while he was talking to her, she began to cry;
(e)says that he then guided her from a seated position to a standing position, to enable him to hug her and thereby give her comfort;
(f)says that, after the patient had stood up, he hugged her, to give her comfort and to stop her crying;
(g)admits that when he hugged her face was against his chest; and
(h)otherwise, denies the allegations …
Prior history
The respondent studied medicine in South Africa, graduating in 1980, and came with his wife to Perth in 1990.
In 1993, he joined a general practice in central Perth and has remained there since that time.
Whilst an undergraduate, the respondent had been trained in hypnosis, and when he commenced general practice in Perth he began to use that skill, in particular to treat stress and anxiety in patients.
Dr G is aged 29 years, and was a resident of Sydney until she came to Western Australia in January 2005 to undertake a postgraduate medical course at the University of Notre Dame.
She completed her course in 2008 and commenced practice as a medical practitioner in 2009.
Immediately on arrival in the state in January 2005, Dr G became a patient of the practice where the respondent worked.
On 23 April 2006, she saw the respondent for a respiratory tract infection, and thereafter saw him at the practice, until she ceased as a patient following the events of 12 May 2009.
Her attendance at the practice was on a relatively regular basis apart from 2007, when she lived in Bunbury for some months whilst studying at a rural clinical school there.
At Dr G's second consultation with the respondent in May 2006, she revealed that her physical complaints included longstanding diarrhoea, abdominal pain and bloating, while she also suffered badly from stress and anxiety, caused by a dysfunctional relationship with her parents who lived in Sydney, difficulties in other interpersonal relationships and pressure from her studies and examinations.
Thereafter, Dr G attended from time to time in relation to those matters, chronic tiredness, and various other physical ailments, including back pain, there being a total of 30 consultations.
Various modalities of treatment were utilised by the respondent, including counselling.
It is common ground that the respondent hypnotised Dr G on a number of occasions, although when that began, its purposes, and the number of times it was utilised were all in dispute.
Dr G said she was first hypnotised in 2006, that its principal purpose was to treat her diarrhoea, her back not being involved, and that hypnosis was carried out in the year 2008 alone on six to eight occasions.
The respondent said he had not used hypnosis until June 2007, when there had been a discussion about Dr G's tiredness, which he thought might be linked to her abdominal problems.
In January 2008, the respondent said Dr G had complained of injuring her back, and thereafter she often complained of lower back pain, so that at least once in 2008 he suggested hypnosis for that and he said that with Dr G's consent he gently manipulated her back under hypnosis.
It is the case with the sole exception of the final consultation on 12 May 2009, that there is no record of hypnosis in the respondent's medical notes, a fact the doctor was necessarily obliged to concede.
In that regard, although some excuse was offered, the respondent said he agreed '100%' he ought to have made a note of such treatment.
The Tribunal is not able, nor is it necessary to determine, when hypnosis began, but we do consider that it is probable that such occurred more frequently than suggested by the respondent.
We accept the evidence of Dr G that she was not told her back was to be manipulated prior to that occurring.
However, it would seem probable that the purposes for which hypnosis was sought to be used by the respondent did embrace the patient's complaints of back pain, as well as her other difficulties.
On her return from Bunbury in 2007, Dr G informed the respondent of the personal difficulties that she then encountered.
Those included the determination of what she described as an 'emotionally abusive relationship' with her former fiancé, that she had not been assisted to move out of the house which they had shared together, that she then had nowhere to live and that she had been extremely stressed and suicidal and had seen and been hypnotised on a number of occasions by a counsellor in Bunbury.
Dr G later told the respondent that she had suffered from anorexia nervosa at age 12, had also suffered from an obsessive compulsive disorder and low self esteem, had a poor relationship with her parents, had spent a large part of her adolescence in psychiatric institutions in Sydney, and had various other difficulties.
It is against that backdrop, and further physical difficulties in 2008, as well as problems arising from a sexual relationship with a fellow doctor, named Chris, that Dr G says there were several occasions on which she was hypnotised during 2008.
We accept that this was the case.
Counselling also occurred in December 2008, following the removal of a ganglion from a lower limb which later bled whilst Dr G was in Perth with her mother, and she returned to the practice in a distraught state to have that wound attended to.
Whilst there, and after a nurse had failed to calm her, the respondent hugged Dr G, which calmed her.
Dr G said that thereafter the respondent hugged her at the end of each consultation for an extended period, something denied by the respondent.
Dr G was also driven to her flat in Malcolm Street, Perth by the respondent after a consultation one evening.
That was initially denied by the respondent, but after Dr G had given her evidence, which included detail of the location of his vehicle, in his evidence the respondent merely claimed a lack of recollection, and did not deny it had happened.
Dr G said that at that time she began to feel uncomfortable under hypnosis as she would be 'deeply sedated for a long time without any guided visualisation'.
She said she also thought the respondent's failure to obtain consent prior to the manipulation of her back under hypnosis was 'strange'.
Dr G began to feel, she said, 'that Dr Wolman had become too familiar with me'.
The respondent's medical notes record on 18 January 2009:
Counselling
About Chris.
He is seeing someone else.
Dr G said that she was upset as a result of the termination of her relationship with Chris, and she also had dyspepsia.
The penultimate consultation occurred on 31 March 2009.
Again, Dr G's complaints included physical difficulties, with vomiting, diarrhoea and stomach pains and relationship difficulties with another doctor.
Dr G travelled to Sydney in late April 2009 and on her return made an appointment to see the respondent.
12 May 2009
The final consultation then took place on 12 May 2009.
On the morning of that day, Dr G said she attended a course in relation to sexual assault provided for medical practitioners at the Sexual Assault Resource Centre (SARC).
She later attended the respondent's premises, her appointment being for 3.45 pm.
There, Dr G recounted her symptoms, was briefly examined by the respondent and given a referral for her stools to be tested.
Dr G said they then stood up, but as she made to leave the room she began to talk about another matter of concern, so that the respondent directed her back towards her chair.
She then spoke, Dr G said, of the male colleague at Royal Perth Hospital (RPH) with whom she had had a sexual relationship, and referred to a sexual encounter between them as being 'like rape' and as having 'just happened'.
The respondent did not comment on any failure by Dr G to take responsibility, she said, but did ask whether she wanted help, and as she was 'scared and worried' she said she did, and agreed she would appreciate any guidance or advice that he could give.
Dr G said the respondent then moved to a chair near her so that he could give advice, she then thought.
After an exchange as to whether she would find a suitable man, Dr G said the respondent put his hand on her right shoulder and hypnotised her, so that her eyes closed and she went into a deep trance.
The respondent did not take her right hand, as he usually did to hypnotise her, Dr G said, although at some point he had taken hold of it.
Dr G gave a somewhat different account in a written statement to police when she said that she 'was in the process of getting up out of the chair to leave' when the respondent touched her shoulder and put her in a trance.
She then stated, in her complaint to the Board, that after the respondent sat down next to her he took her hand, prior to putting his hand on her right shoulder and hypnotising her.
Dr G said that shortly afterwards the respondent removed her backpack and handbag, and holding her hands, moved her to a standing position and then pulled her arms around him and held her tightly, so that her face was pressed against his chest, whilst he massaged her lower spine.
The respondent was breathing heavily Dr G said and she then felt something hard in her groin area, and became aware that the respondent was rubbing his penis against her.
Dr G said she felt it was wrong, tried to come out of her hypnosis, and called out something like 'stop' or 'it's too much'.
She said the respondent then released his embrace and helped her back to her chair, and she heard him count the last of the numbers he used to bring her out of hypnosis.
Dr G said she struggled to come out of hypnosis, but was able to open her eyes and was then awake, albeit groggy and in shock.
The main thought on her mind was to get out of the room, she said, and she said 'no' when the respondent asked her if there was anything she wanted to discuss.
Dr G said the respondent then told her that he was glad she was able to say 'no' and was in control and that she would be able to say 'no' to men in the future.
She replied that it was good to have someone give her a hug, but she did not want to have sex, she said, to which the respondent replied that he was not asking for that, on which she made reference to his marital state and children.
Dr G said that her reference to a hug had been to her recent relationship, but she thought that the respondent might have misunderstood her.
After a brief reference to the stool test and follow up Dr G said that she left the room, but went to the bathroom shortly afterwards, where she observed her face was flushed and there were pressure marks on her nose.
Dr G said that she left the medical centre distressed and in despair, and walked around the city and then telephoned a friend.
The respondent said that Dr G had looked ill on presentation on 12 May 2009, was 'rather dishevelled', by which he later said he meant her hair was less neat than usual, and had a 'malodorous smell', which he said he assumed came from diarrhoea.
The respondent said that the consultation then proceeded as described by Dr G, other than that he had also referred to the likelihood that the diarrhoea was due to anxiety.
He first said that on receipt of the referral Dr G did not get up to leave, but rather began to speak again of her relationship with a 'Muslim doctor', and referred to a sexual encounter with that doctor as having been like rape, although he later referred to her having sat down again, inconsistently with her not having got up.
The respondent said that he had told Dr G that she needed to be much more careful with sexual activity and to take responsibility there.
He then asked her whether she wanted help in regard to her relationship difficulties, the respondent said, and by that 'was in effect' asking whether she wished to be hypnotised and assisted in that way.
The respondent said that he moved a chair and sat down opposite to where Dr G sat, after which he took the referral from her hand and put it on the desk.
Dr G was then asked to remove her backpack and handbag, the latter being on her shoulder, the respondent said, and he stood to assist and then sat down again.
The respondent said he then went through his normal prehypnosis routine, which was to hold Dr G's right hand with his, ask her to squeeze his hand, and then, after that occurred, to count her into hypnosis by reciting:
1, 2, 3, 4, 5, hypnotise.
The respondent said it was essential to seek consent and to obtain clear agreement, and he considered that occurred and thought that Dr G was under hypnosis, although he later agreed he should have asked whether she understood what he intended.
He said he then told Dr G:
I want you to go to a place you feel content in, happy.
Dr G started to cry, the respondent said, but stopped.
As Dr G woke up he said in evidence he attempted to implant a posthypnotic suggestion, with a view to her having control of future personal encounters, something he said in his statement had occurred following hypnosis and which had been followed by Dr G crying.
The respondent said that whilst Dr G was crying he 'gently' raised her up, guided his arms under her arms so that her arms went around him, and hugged her.
Dr G stopped crying and he partially released her to check that she had stopped and then finally released her when she indicated that she was uncomfortable and wanted him to stop.
The respondent said he had not rubbed Dr G's back, had not had an erection and had not pressed his groin against hers.
When Dr G woke up the respondent said that he told her that it was good she could say 'no' to things, as she was clearly uncomfortable, and he thought he could turn that to 'therapeutic advantage'.
The respondent said he also said:
I am sorry.
That was a reference, he said, to Dr G's upset and discomfort 'with me embracing her'.
The respondent said that Dr G replied:
That's the trouble. Everyone always expects something from me.
Although he did not know what she had meant by that, the respondent said that he responded:
I don't expect or want anything from you.
He said Dr G had then alluded to his wife and children.
When Dr G left, the respondent said he made notes in his file, which included:
Discussion about being pushed into having sex when she did not want to with Islamic boyfriend;
- told me shat she had broken up with him but he still expects her to go out with him;
upset by this;
hypnosis to help her cope with this;
crying during hypnosis so I hugged her;
terminated hypnosis because she said that she was uncomfortable with this;
she said that that was the trouble everyone always expected things from her;
I replied that I don't expect or want anything from her;
she said of course not you are married and have children and pointed to the photos of my family on the wall.
I asked if there was anything that she wanted to talk about and she said no.
The detail of that note stands in sharp contrast to the brevity of his other notes, and the respondent told the Tribunal:
I thought she may have thought I was making a sexual advance to her.
In his view, the respondent said Dr G had gone into hypnosis.
He hugged her, he said, as he thought physical contact was needed to calm her down.
The respondent said that in retrospect, when Dr G cried the optimum approach would have been to take her out of hypnosis.
During a prior hypnosis, and when he had intended to manipulate her spine, the respondent said he gave Dr G advance notice of that.
The respondent agreed that on this occasion he did not tell Dr G that he was going to hug her.
Events following 12 May 2009 consultation
Dr G said she called a friend, Natasha Makajil (Natasha) from her bible studies group, said something bad had happened, and asked to see her, but was told by Natasha that she was in Jurien Bay, and it was suggested she call Smita Samuelraj (Smita).
She then called Smita and told her she thought she had been sexually assaulted, also telling her what had happened and about her hypnotherapy, Dr G said, and as Smita was on call, also being a medical practitioner, it was arranged that she would meet Shyam Verma (Shyam), Smita's fiancé, at his apartment in West Perth.
That duly occurred, Dr G said, and Shyam left her in his apartment and went to work.
Prior to seeing Shyam Dr G said she also rang SARC and left her contact details.
A counsellor telephoned her about an hour later, she said, and they had a long conversation, following which a police officer called.
She also spoke by telephone to her mother, she said.
Dr G said she made a statement to police two days later.
Smita said in her evidence that Dr G sounded hysterical when she called, and told her she had been hypnotised against her will by her doctor, who then rubbed his penis against her through his clothes, whilst they stood very close.
Dr G said she eventually broke free of the trance by repeating 'no. no. no.' in her mind, Smita said, and walked out of the room and then the surgery before making the telephone call.
Smita said she did not recall anything being said about prior hypnotherapy.
Medical and other expert evidence
Four doctors and a clinical psychologist gave evidence, each having earlier prepared reports, both individually and joint.
The Board's medical witnesses were a psychiatrist, Dr Tannenbaum and a general practitioner with experience in hypnosis, Dr Geoffrey Emery.
The respondent called Dr Anthony Mander, a psychiatrist, Dr Darryl Menaglio, a clinical psychologist, and clinical associate professor Peter Winterton, a general practitioner.
The Tribunal was assisted by the presence of the witnesses initially together in the witness box, the evidence being given by them in three groups, following the creation of three joint reports.
The joint report of Dr Menaglio, Dr Mander and Dr Tannenbaum was agreed by counsel to relate to Dr G's condition on arrival at the medical centre on 12 May 2009, what she understood to have occurred, and the reliability of that.
It was agreed by the three that Dr G had either gone into a deep state of changed consciousness or hypnosis.
It was also agreed that:
Given her background of psychiatric disorder, institutionalisation and relationship difficulties great care is needed in using hypnosis as the relationship with the treating person may be misperceived.
Dr Menaglio said he considered the state Dr G was in when she arrived was relevant to both her ability to consent to hypnosis and the degree of difficulty she would have had in understanding what the respondent did.
Further, he said that it was probable that on arrival Dr G was already in a regressed state of consciousness.
He said he considered that during subsequent events that Dr G was in that state rather than in a state of hypnosis.
Both Dr Menaglio and Dr Mander said that Dr G was primed to misinterpret physical contact.
In that regard, and as appears above, the respondent gave evidence that Dr G had begun to cry after going into a trance, something denied by her.
However, in a responsive statement seen by the experts prior to the preparation of their joint report Dr G appeared to contradict herself as to that question.
At the hearing Dr G sought to resolve the contradiction, and it is clear from a perusal of the relevant passages in her responsive statement that a typographical error had been made.
The apparent contradiction was referred to in the joint report and was said to have been relied on by both Dr Menaglio and Dr Mander in the formation of their views.
Dr Menaglio agreed that his opinion was based substantially on an assumption that Dr G did cry, as well as her history and what had gone before in the consultation.
Dr Menaglio also said that in circumstances where Dr G had just complained of a sexual encounter that was like rape, for the respondent to direct her to go to 'a place that is happy' could have contributed to a cognitive dissonance, and that usually caused distress.
Dr Menaglio and Dr Mander each expressed a view in the joint report that Dr G probably misinterpreted what occurred during the hug.
Apart from the matters personal to Dr G, including her crying, Dr Menaglio said that it was the nature of hypnosis that it often blurred reality and fantasy.
Dr Mander said that he agreed that the apparent contradiction in the responsive statement of Dr G played a significant role in his assessment.
It was not however possible to predict the degree to which a person might misinterpret a situation, Dr Mander said, and hypnosis increased the risk always of misinterpretation.
Dr Tannenbaum said he did not think there was evidence that Dr G had been in a regressed dissociative state prior to hypnosis, which he thought had occurred, and given the likely depth of her state she would not have been aware of the first part of the hug.
Given Dr G's past life experiences, Dr Tannenbaum said he thought she was a higher risk person to give a full face to face hug when she was partially conscious.
There was evidence here of amnesia following prior hypnosis sessions Dr Tannenbaum said, and such must have been brought about either accidently or deliberately by the respondent.
Dr Tannenbaum further said it would be extraordinarily rare for a hypnotist to undertake an induction and simply say 'go to a happy place and that's the end of it', and he had 'extreme to beyond profound difficulties in believing that to be true'.
Dr Menaglio, Dr Emery and Dr Winterton produced a joint report which largely related to the physical contact between Dr G and the respondent on 12 May 2009.
Both the report and evidence proceeded on the basis that the relevant event was as described by the respondent.
In the report it was agreed that physical contact with, or the hugging of a hypnotised patient was unwise as it could be misinterpreted by a dissociated hypnotised patient, while in the case of Dr G the patient was vulnerable and there was a higher risk of misinterpretation.
It was further agreed that the respondent's behaviour in hugging Dr G was unwise and not best practice.
Nonetheless, Dr Menaglio and Dr Winterton stated that they considered that the respondent's conduct was in the circumstances acceptable, as Dr G had consented to hypnosis and had previously been hugged when distressed.
On the other hand, Dr Emery stated that the respondent's actions were unwise and inappropriate for a general practitioner hypnotist.
Dr Menaglio said in evidence that the heightened risk of misinterpretation from touching arose from Dr G's recent sexual experience, as well as her history.
He agreed that the respondent's action was extremely unwise, and said he did not know why Dr G had not been brought out of hypnosis first.
Dr Menaglio also agreed that in an ordinary case the need to inform a patient that she was to be touched was an important consideration, because of the risk.
Dr Emery said in evidence that he had been reluctant to use the term 'improper' in the joint report as he was unsure as to its meaning, but saw the respondent's actions as inappropriate and as a fairly serious breach of appropriate behaviour.
He later said he would regard it as a serious breach.
The risk of the hug being misconstrued was very real, Dr Emery said, and there was a possibility of harm to the patient, which he later described as a significant risk.
The final joint report was completed by Dr Emery and Dr Menaglio.
In the report it was said to be agreed that it was not possible to hypnotise a person without consent, and that it was reasonable for the respondent here to believe he had obtained consent, based on his account of events.
Dr Emery and Dr Menaglio further stated that they agreed that in hypnosis the patient interpreted what was happening through her own frame of reference, imagined phenomena could appear very vivid and real, and because of those things later accounts of experiences during hypnosis could not be assumed to be accurate.
In evidence Dr Menaglio said, in relation to the need for consent, that in his experience a person not actively opposed to being hypnotised could undergo that process inadvertently.
Dr Emery also said that there were techniques which could permit hypnosis without consent, and a patient might submit rather than provide an informed consent.
Findings
That Dr G was hypnotised by the respondent on 12 May 2009 is, in the Tribunal's view, clear from the evidence.
First, there were only two people present.
Neither expressed any doubt about the fact of hypnosis, in circumstances where it had occurred on a number of previous occasions.
Dr Tannenbaum provided expert support.
The proposition that Dr G was in a repressed state of consciousness emanated from Dr Menaglio.
It was, to a considerable extent, apparently based on the respondent's general description of Dr G's appearance on arrival.
The respondent was largely unable to provide satisfactory particulars to justify that description.
Dr Menaglio's choice of a hypothesis of a changed state of consciousness in preference to that of hypnosis was in any event arbitrary, and at the end of the day speculative, and we would not adopt it, but would rather accept the evidence of those present, as to that issue.
We also accept the evidence of Dr Tannenbaum.
We turn to the issue as to the nature of the embrace applied by the respondent to Dr G, and in particular to the question whether it was sexual in nature, and involved the respondent rubbing himself against his female patient.
There is of course no dispute that if that occurred it would constitute sexual misconduct, contrary to s 76(1)(e) of the Act.
The matter is a difficult one, as are many cases where an allegation of this kind is made in circumstances where the two people are known to each other, and noone else is present.
There is an onus on the Board to make good the allegation.
The sexual misconduct alleged would amount to a criminal offence, and although the standard of proof is the civil standard, the 'importance and gravity of the question' under consideration requires the exercise of caution and a careful scrutiny of the evidence before the Tribunal ought feel persuaded to act on it: Briginshaw v Briginshaw (1938) HCA 34; (1938) 60 CLR 336 at [361] per Dixon J.
In closing, a strong attack was made by counsel for the respondent on Dr G's credibility, it being said that she was an 'unsatisfactory witness'.
There is no doubt that Dr G found the witness box a stressful place.
Given her history, and the nature of the allegations made by her against the respondent, that is hardly surprising.
Dr G was in our view, an honest witness, with a genuine belief that the respondent acted improperly towards her in the manner she described.
It is not in dispute that there was a close and unusual physical encounter.
Complaint about it was made very soon after.
The respondent himself clearly believed Dr G thought he had made a sexual advance, as was evidenced by his selfserving clinical note and concession in evidence.
Further, it was not suggested to Dr G that she had fabricated her allegation of misconduct against the respondent.
There are however some inconsistencies in her evidence.
Further, the evidence of Dr Emery, in particular, lent support for there having been a real possibility that Dr G might misconstrue the nature of a hug, even if nonsexual.
Dr G had attended a SARC course about sexual assault earlier in the day.
The conversation she had with the respondent immediately prior to hypnosis concerned a sexual encounter that she regarded as nonconsensual.
She was under hypnosis at the time of the physical encounter.
On the other hand, the respondent's behaviour on both this and some other occasions is of some concern to the Tribunal.
There was on any view of the evidence a close relationship between the two, with evidence of some emotional dependence, and with the respondent a middleaged male and Dr G, his patient, an attractive and vulnerable young woman.
On at least one other occasion the respondent did not see any need for the presence of another female whilst obtaining a high vaginal swab.
He had previously initiated, and then repeated, physical contact between the two by way of hugging, ostensibly to provide emotional support.
There were inconsistencies in the respondent's evidence as well, including one significant alteration as to the events that occurred whilst Dr G was under hypnosis.
The respondent's recordkeeping fell far below the standard expected of a competent general practitioner, and his last note revealed a willingness to use the notes for his own ends rather than for the welfare of the patient.
The respondent was a somewhat belligerent and difficult witness.
The Tribunal, has, after seeing and hearing the witnesses, closely scrutinised the evidence.
The Board does expressly accept that the Tribunal must 'feel an actual persuasion of the occurrence of the events or the existence of facts which are in issue': Briginshaw at 361, 363.
At the end of the day the Tribunal is not so persuaded as to the allegation of sexual misconduct, which must therefore fail.
The Tribunal turns to the Board's first allegation, that the respondent acted improperly within the meaning of s 76(1)(b)(iii) of the Act in that he hypnotised Dr G without her consent.
Dr G said that she was not aware the respondent intended to hypnotise her prior to that occurring, and hence did not consent to it.
We accept that evidence, and find the respondent did hypnotise Dr G without her consent.
At the end of the hearing, and in the course of closing addresses, the Tribunal raised with counsel a question as to whether the criminal law concept of honest and reasonable mistake had any role to play in relation to an allegation of the relevant kind, and in particular whether s 24 of the Criminal Code Act 1913 (WA) (Code) had application.
Counsel were given the opportunity to consider the question and to file submissions, if desired, and that later occurred.
Counsel for the applicant fairly acknowledged that:
… while s 24 of the Criminal Code has no application, similar principles, it is submitted, would apply in determining objectively whether or not the conduct was improper and the applicant accepts it would have the burden of proof to negative those considerations.
The respondent made a submission that s 24 of the Code did have application and referred to a number of decisions where the Court had considered that question, in various contexts.
Section 24, which falls within Ch V of the Code, reads as follows:
24. Mistake of fact
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.
The final section in Ch V is s 36, and that provides that it applies to all persons charged with 'any offence against the statute law of Western Australia'.
Reference must also be made to s 2 of the Code, which provides:
An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.
The seminal case in regard to the application of s 24 is Geraldton Fishermen's Co‑operative Ltd v Munro [1963] WAR 129, where Hale J, speaking on behalf of all members of the court, said (at 133):
… it is now accepted that s 36 of the Criminal Code means exactly what it says and that the provisions of Chapter V apply to all statutory offences. It follows that where there is no express exclusion then s 24 and the section creating an offence must, if possible, be read together, and s 24 can not be treated as excluded by implication, unless on a fair reading of the penal section (read of course in the context of the whole Act in which it stands) it is seen that the penal section is inconsistent with the co‑existence of s 24 so that the effect cannot be given to both at the same time: Brimblecombe v Duncan, [1958] Qd R 8, per Philp and Matthews JJ at p 12 and per Stanley J at p 19: see also for the same view as to s 23, Hunt v Maloney [1959] Qd R 164.
As to the position here, Pt 6 of the Act is entitled 'Disciplinary, competency and impairment matters'.
Section 76 of the Medical Practitioners Act 2008 (WA) is the first section that falls within the part, and reads relevantly:
76. Disciplinary matters
(1)The following are disciplinary matters ‑
…
(b)that a person in the course of his or her practise as a medical practitioner –
(i)acted carelessly;
(ii)acted incompetently;
(iii)acted improperly;
(iv)breached this Act;
(v)failed to comply with an undertaking given to the Board under this Act;
(vi)provided services that were excessive, unnecessary or not reasonably necessary for the recipient’s wellbeing;
(c)that a person has been convicted of an offence the nature of which renders the person unfit to practise as a medical practitioner;
(d)that a person has engaged in conduct in a professional respect that falls short of the standard —
(i)that a member of the public is entitled to expect of a medical practitioner; or
(ii)that a member of the medical profession would reasonably expect of a medical practitioner;
(e)that a person has engaged in sexual misconduct.
It is provided in the part that a person may lodge a complaint with the Board in relation to a disciplinary matter in respect of a medical practitioner, and the Board may, when it considers it appropriate to do so, make an allegation of such to the Tribunal.
The Act then provides (s 116) that where in a proceeding so commenced the Tribunal is of the opinion that a disciplinary matter exists in relation to a medical practitioner, it may do one or more of the things provided.
Those include the imposition of a penalty not exceeding $25,000, the making of an order for suspension, or the making of an order that the medical practitioner's registration be cancelled and his name be removed from the register.
The term 'disciplinary matter' is said by the Act to mean a matter referred to in s 76(1).
The question of what constitutes an offence for the purposes of Ch V of the Code was considered by a Full Court in Maynard v Racing Penalties Tribunal (1994) 11 WAR 1 (Maynard) , in the context of Rules of Racing made by the Western Australian Turf Club, pursuant to a power so to do under a bylaw created by that body under the auspices of an Act of Parliament.
After pointing out that the relevant Act provided that it was an offence to breach a by‑law, with a specific monetary penalty, and that a quite separate set of penalties was provided for in the Rules of Racing, Ipp J held that the latter were not part of the statute law of the State, so that s 24 of the Code did not have application.
Nonetheless, there being a contract between the applicant there and the club it was held that there was a presumption, implied by law, that honest and reasonable mistake would be a defence to offences created by the Rules of Racing, unless an intention to exclude the rule plainly appeared from it.
That was not the case there.
The issue was again considered in Harper v Racing Penalties Tribunal (Unreported, WASC, Library No 950040, 8 February 1995), this time by a bench of five judges, and in relation to the Rules of Trotting made by the Western Australian Trotting Association.
There was a similar result in Maynard in relation to the non‑statutory status of the rules, but a different result as to the implication of a contractual term.
In the present case, and as the respondent points out, the position in relation to the statutory status of the relevant rules is plainly different.
It follows, it is said on the respondent's behalf, that s 24 of the Code has application, there being nothing in the Act which would exclude that provision.
With respect, that submission ignores the need to first consider whether a finding that a person in the course of his practice as a medical practitioner acted improperly or engaged in sexual misconduct amounts to a determination that an offence has been committed.
It is true in that regard that such a finding renders the person liable to punishment, the imposition of a fine at least clearly falling within that description.
However, and as appears, the Act does not describe conduct of the kind set out in s 76 as an offence, but rather a disciplinary matter.
In that regard s 3 of the Act is relevant, and provides:
3. Objects of Act
The objects of this Act are -
(a)to ensure that only properly qualified and competent persons practise medicine and to regulate the practice of medicine by those persons; and
(b)to establish, maintain and promote suitable standards of knowledge and skills among medical practitioners,
for the purpose of protecting consumers of medical services provided by medical practitioners in Western Australia.
In Medical Board of Western Australia v Richards [2010] WASAT 94 the Tribunal relevantly stated at [26]:
… s 76 is concerned with professional disciplinary proceedings. The objects identified in s 3 of the MP Act are designed 'for the purpose of protecting consumers of medical services'. That object is the traditional object of professional regulatory legislation.
It is relevant that the standard of proof in professional disciplinary proceedings is the civil standard of proof.
Further, the principles which govern the determination of a penalty appropriate to a breach of professional standards are quite different to those relevant to punishment for a criminal offence.
In Pillai v Messiter (No 2) (1989) 16 NSWLR 197, 201 Kirby P stated that the purpose was 'not punishment of the practitioner as such but protection of the public'.
In the Tribunal's view a disciplinary matter under s 76 of the Act ought not be regarded as an offence for the purposes of the Code.
It follows that s 24 of the Code does not have application in the present case.
The respondent also submitted that in some instances there may be a defence of honest and reasonable, but mistaken, belief available in relation to common law offences.
Again, for there to be any application of such a principle here it would be first necessary to characterise a disciplinary matter as an offence.
The principles which underlie the implication of such a defence are however not without relevance.
In He Kaw The v The Queen (1985) 157 CLR 523, Gibbs CJ discussed whether such an offence ought be available in relation to an offence of importation into Australia of a prohibited import, in particular heroin.
The learned judge observed (530):
It is unlikely that the Parliament intended that the consequences of committing an offence so serious should be visited on a person who had no intention to do anything wrong and no knowledge that he was doing so.
Here the respondent is alleged to have acted improperly.
For present purposes at least that can be regarded as denoting conduct of the same kind as was contemplated by the term 'improper conduct in a professional respect' that appeared in the Medical Act 1894 (WA).
That term was said to embrace conduct which would reasonably have been regarded as improper by professional colleagues of good repute and competence: Cranley v The Medical Board of Western Australia (Unreported, WASC, Library No 8668, 21 December 1990).
According to the Shorter Oxford English Dictionary 'improper' bears a meaning which includes incorrect, inaccurate, irregular or wrong.
Improper conduct thus includes conduct which pertains to some false state of affairs.
That raises the question whether it was the intention of the legislature to stigmatise such conduct irrespective of the state of mind of the medical practitioner involved.
There is no expression of legislative intent to that effect, nor would such a construction assist the expressed aims of the Act.
Put another way, if a medical practitioner's conduct results from an honest and reasonable but mistaken belief in a state of affairs which, if actual, would not cause his conduct to be regarded as improper, ought that conduct be so regarded.
The Tribunal is of the view that question ought to be answered in the negative.
In the present case we find the Board has failed to satisfy us that the respondent did not have an honest and reasonable belief that Dr G was consenting to hypnosis when it was induced.
The respondent was sitting near Dr G immediately prior to hypnosis, having moved a chair for that purpose prior to sitting in it.
There is some confusion in Dr G's various accounts as to whether and when the respondent took hold of her right hand, and we think it is necessary in the circumstances to proceed on the basis that did occur, as the respondent asserted.
It is common ground that the respondent ordinarily took the right hand of Dr G in one of his prior to hypnosis.
That such occurred here was we think likely, in the circumstances, to result in a belief on the part of the respondent that Dr G was aware that hypnosis was to occur.
The respondent says that Dr G squeezed his hand, to signify she was ready for hypnosis to commence, and in the circumstances we would proceed on the basis that he may reasonably have believed that did occur, and there was thus indication of consent.
Hence, when the respondent hypnotised Dr G he had an honest and reasonable but mistaken belief that she had consented to that.
The allegation that the respondent acted improperly in that he hypnotised Dr G without her consent therefore fails.
We turn to the third allegation that the respondent acted improperly in that he embraced Dr G whilst she was under hypnosis, in circumstances where he did not have her consent so to do.
We accept Dr Tannebaum's evidence that because of her life experiences Dr G presented with an elevated level of risk in relation to the possibility she would misconstrue a full embrace when under hypnosis.
Further, on presentation on 12 May 2009 Dr G appeared unwell to the respondent, and was then anxious to speak of a recent sexual encounter that she regarded as non‑consensual.
She was then hypnotised, but became distressed.
Dr G was, as stated by Dr Mander and Dr Menaglio, primed to misinterpret physical contact, whilst imagined phenomena could appear very vivid and real when under hypnosis.
In the circumstances, and as the expert evidence confirms, to hug the patient would be unwise, particularly when no advance notice of what was intended was given.
The respondent was or ought to have been aware of those things.
On a past occasion the respondent said he had informed Dr G prior to touching her, when she was under hypnosis. However, he chose not to do that on this occasion.
The respondent also made no attempt to bring Dr G out of hypnosis, although he conceded that would have been the optimum measure.
Rather, after being brought to her feet, Dr G received a frontal embrace or hug, which persisted, to some extent at least, until she indicated she wished it to end.
Dr G did misinterpret the hug, and believed, and still believed at the time of the hearing, that the respondent sexually assaulted her.
We would accept Dr Emery's description of the respondent's conduct as unwise and inappropriate, and a fairly serious breach of appropriate behaviour, given there was a significant degree of risk of harm to the patient.
In the Tribunal's view the respondent's conduct fell sufficiently far below the standard of professional skill and competence expected of a medical practitioner that it ought be regarded as improper, and as warranting disciplinary action for the protection of the public. Ong v The Dental Board of Western Australia (unreported, WASCA, Library No 950442, 25 August 1995).
The third allegation of the Board is therefore made out. The application succeeds to that extent.
We will hear from the parties in relation to the question of an appropriate penalty.
Order
The application is referred to a directions hearing at 10 am, Tuesday, 10 May 2011.
I certify that this and the preceding [262] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE R MACKNAY QC, SUPPLEMENTARY DEPUTY PRESIDENT
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
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
REASONS FOR DECISION OF THE TRIBUNAL:
Background
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.
See Medical Board of Western Australia v Wolman [2011] WASAT 69.
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.
The Tribunal must now determine the consequences which ought to flow from its findings.
Penalty
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;
(j)order that the person be suspended from the practice of medicine for a period, not exceeding 2 years, specified in the order;
(k)order that the medical practitioner’s registration be cancelled and name be removed from the register.
The applicant submits that given the Tribunal's findings, it is appropriate that the respondent be reprimanded and that a fine also be imposed.
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.
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.
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.
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.
All speak highly of the respondent.
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.
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.
The respondent concedes that a reprimand would be appropriate.
However it is submitted that the Tribunal ought not impose a fine.
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.
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.
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).
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 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].
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.
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.
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.
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.
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.
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.
Taking into account all of the circumstances we fix the sum of $4,000.
Other orders
The applicant seeks an order that the respondent attend a course which deals with professional boundaries.
That is opposed by the respondent.
After due consideration, the Tribunal has decided not to impose such a requirement.
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.
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.
In response the respondent reiterates that he has ceased to utilise hypnotherapy in the course of his practice.
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.
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.
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.
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.
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
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:
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].
Here the applicant was partly successful.
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.
The respondent does not seek any costs order here, and does not oppose an order being made in the applicant's favour.
It is however submitted that order ought be for only 25% of the applicant's costs.
The applicant seeks an order for 50% of its costs.
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.
The Tribunal is of the view that there was considerable overlap in the evidence here, the three allegations arising out of a single consultation with one patient, whilst it was necessarily always the applicant's contention that the respondent embraced the patient without her consent.
A significant amount of the expert evidence addressed the issue on which the applicant was successful.
The Tribunal accepts that the respondent is not to be required to pay the applicant's costs where it was not successful.
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
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.
4. The respondent pay 35% of the applicant's costs, such to be assessed if not agreed.
I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE R MACKNAY QC, SUPPLEMENTARY DEPUTY PRESIDENT
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