Medical Practitioner v Medical Board of Australia and Act Civil and Administrative Tribunal

[2011] ACTSC 191

THE MEDICAL PRACTITIONER v THE MEDICAL BOARD OF AUSTRALIA & ANOR
[2011] ACTSC 191 (28 November 2011)

APPEAL –appeal from ACT Civil and Administrative Tribunal – occupational discipline – suspension from practice – whether conduct engaged concept of public safety – whether appellant’s sexual relationship with patient had put public safety at risk – not open to rationally conclude that there was risk of breaching sexual mores in Code of Conduct applicable to medical practitioners – tribunal in error – suspension reduced

Health Professionals Act 2004 (ACT), ss 8, 41, 42, 43, 44
ACT Civil and Administrative Tribunal Act 2008 (ACT), s 65
Crimes Act 1900 (ACT), s 67

ACT Medical Board & The Medical Practitioner [2009] ACAT 34 (25 September 2009)
Law Society of New South Wales v Foreman (1994) 34 NSWLR 408
Richter v Walton (NSWCA, Kirby P, Priestly JA, O’Keefe AJA, 15 July 1993, unreported)
Re A Medical Practitioner [1995] 2 Qd R 154
De Gregory v General Medical Council [1961] AC 957
South Australia v Totani (2010) 242 CLR 1

ON APPEAL FROM THE ACT CIVIL AND ADMINISTRATIVE TRIBUNAL

No. SCA 71 of 2010

Judge:             Higgins CJ
Supreme Court of the ACT

Date:              28 November 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCA 71 of 2010
AUSTRALIAN CAPITAL TERRITORY           )          

ON APPEAL FROM THE ACT CIVIL AND ADMINISTRATIVE TRIBUNAL

BETWEEN:THE MEDICAL PRACTITIONER

Appellant

AND:THE MEDICAL BOARD OF AUSTRALIA

First Respondent

AND:THE ACT CIVIL & ADMINISTRATIVE
TRIBUNAL

Second Respondent

ORDER

Judge:  Higgins CJ
Date:  28 November 2011
Place:  Canberra

THE COURT ORDERS THAT:

1. The Tribunal’s orders are varied to reduce the appellant’s suspension period to six months.

1. The other orders made by the Tribunal are confirmed.

1. This is an appeal by a medical practitioner whose identity has been suppressed by order of the ACT Civil and Administrative Tribunal (‘ACAT’).  Also suppressed are the identities of witnesses in the proceedings before ACAT.  There has been no application to discontinue or vary those orders.

1. Proceedings were commenced by an application under s 42 of the Health Professionals Act 2004 (ACT) (‘HP Act’) dated 8 August 2007. It was made to the Human Rights Commission but referred by that body to the Medical Board pursuant to s 8 of the HP Act.

1. The complainant had consulted the practitioner, a general practitioner, in 2002 following traumatic events at her workplace.  She had experienced various traumatic events.  Between then and October 2006, a sexual attraction arose between the practitioner and the complainant.  A few weeks before sexual intercourse occurred between them, the practitioner sought legal advice as to his situation.  He was advised against a relationship with the complainant.  He did, by a written document, purport to terminate the doctor/patient relationship the day before intercourse occurred.

1. The relationship broke down in March 2007.

1. The Medical Tribunal of ACAT (‘the Medical Tribunal’) was satisfied that this conduct on the part of the practitioner breached clauses 3 and 5 of the Code of Conduct in the Standards Statements (ACT Medical Board 2006, Version 1).  The practitioner accepts that he breached these standards in engaging in the relationship he did.  He acknowledges that the attempt to end the doctor/patient relationship did not excuse him from the obligations imposed by the Code of Conduct.

1. It is unnecessary to review in detail the evidence concerning the relationship.  It is not disputed that it breached the professional standards imposed on the practitioner and it had an adverse impact on the complainant.

1. Those adverse findings warranted a disciplinary response.  Balanced against that were testimonials supporting the competence of the practitioner and his care and concern for his patients.  The Medical Tribunal expressed a reservation that many of the testimonial writers appeared to be unaware of the practitioner’s misconduct.  Of those aware of the allegations, some said that they did not believe them.

1. The Medical Tribunal, as a result, opined that “they are of limited value” (see ACT Medical Board & The Medical Practitioner [2009] ACAT 34 (25 September 2009 at [57]). It is not clear what limitation was placed on them. It was not suggested that this or any other kind of misconduct had been engaged in by the practitioner on any other occasion. It could not have been regarded as anything other than an isolated lapse, albeit constituted by a course of conduct, not merely a single occasion.

1. It was also open to conclude, as the Medical Tribunal did, (at par [63]):

The respondent’s principal concern as the complainant’s treating medical practitioner was not for the emotional well-being of the complainant:  indeed the respondent did not seem to have considered the effect such a relationship might have on a woman in the circumstances of the complainant.  She was a single mother, socially isolated, separated from and in conflict with the partner of her child.  She was not working, and was dependent upon workers compensation payments for her support.  Continuation of those payments depended upon the issue of Comcare certificates, certifying that she continued to suffer from a post-traumatic stress disorder.  While the Board does not suggest and the Tribunal does not consider that the respondent used the power to give or withhold certificates (thereby ensuring the continuation of the complainant’s financial support) as a lever to gain advantage over her it is in the Tribunal’s view a factor which increased the vulnerability of the complainant that arose from the other circumstances of her life.  She was under treatment by a psychiatrist for post traumatic stress disorder.

1. It was also open to conclude that the practitioner lacked insight into the seriousness of his misconduct and its consequences.

1. Section 41(1) of the HP Act then empowered the Medical Tribunal to find grounds for occupational discipline had been established:

41       Grounds for occupational discipline

(1)each of the following is a ground for occupational discipline in relation to a health professional:

(a)the health professional has contravened, or is contravening, a standard of practice that applies to the health professional;

(b)the health professional has put, or is putting, public safety at risk;

(c)the health professional does not satisfy the suitability to practise requirements.

1. The Medical Tribunal was then obliged to consider, pursuant to s 43, whether to suspend or cancel the health professional’s registration:

   ...

   (2)The ACAT must consider the following:

   (a)whether the health professional has contravened a standard of practice that applied to the health professional;

   (b)whether the health professional has put, or is putting, public safety at risk.

2. Thereafter, the Medical Tribunal was empowered to make orders under s 44:

44       Occupational discipline orders

(1) This section applies if the ACAT may make an order for occupational discipline in relation to a health professional.

Note The ACT Civil and Administrative Tribunal Act 2008, s 65 sets out when the ACAT may make an order.

(2) In addition to any other occupational discipline order the ACAT may make, the ACAT may make 1 or more of the following orders for occupational discipline in relation to the health professional:

(a) require the person to undergo stated medical, psychiatric or psychological assessment, counselling or both;

(b)require the person to take part in a review of the person’s professional practice;

(c) require the person to report on the person’s practice at stated times, in the way stated and to a named person;

(d) require the person to seek and take advice from a stated entity about the management of the person’s practice;

(e) require the supervision, monitoring or reporting about the effect of something the person is required to do by the ACAT;

(f) if the person is not registered—declare that, if the person had been registered, the ACAT would have found that the person had contravened the required standard of practice or did not satisfy the suitability to practise requirements.

Note 1If an unregistered person is found to have contravened a required standard of practice, or to not satisfy the suitability to practise requirements, this may be taken into consideration if the person applies for registration (see the regulations).

Note 2 The ACT Civil and Administrative Tribunal Act 2008, s 66 sets out other occupational discipline orders the ACAT may make.

1. Before doing so, the Medical Tribunal noted, appropriately, the “severity of the breach”, including the breach of trust constituted by the practitioner’s misconduct.  It then continued (at [70]):

The other consideration under section 43(2)(b) that the Tribunal must take into account is whether the health professional has put, or is putting, public safety at risk. The Tribunal is satisfied that on the evidence, the respondent did put the safety of the complainant at risk. The evidence of the psychiatrist treating the complainant is that the commencement of the relationship, the way that it was conducted and the way that it was concluded significantly damaged the mental health of the complainant and the process of recovery from the condition from which she suffered. In the Tribunal’s view it is not necessary that the public safety of more than one person be put at risk: in the present case the Tribunal is satisfied that the conduct of the respondent put at risk the member of the public, the complainant, who sought his services.

1. Section 65(3) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (‘ACAT Act’) required:

   (3)In considering what occupational discipline to use against the subject person, the tribunal must consider the following:

   (a) whether the person took reasonable steps to avoid the action (the contravention) that is the ground for occupational discipline;

   (b)whether occupational discipline has previously been used against the person for a similar act;

   (c)whether the person has taken steps to mitigate the effect of the contravention;

   (d) the impact of the contravention on any other person;

   (e) the likelihood that the person will act in a way that is a ground for occupational discipline in the future;

   (f) whether the entity bringing the application has applied for particular occupational discipline to be used and, if so, the kind of occupational discipline applied for.

   Example—par (c) the person has changed a method of work or given a direction to staff to prevent further contraventions

   Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

2. The Medical Tribunal addressed each of those criteria noting the egregious nature of the breach.  What were called matters in mitigation were also considered.

1. In truth, mitigation is not the most apt word to characterise matters ameliorating the breach.  It really refers to matters favouring the ongoing competence and fitness for practice of the practitioner.  Much of the discussion really relates to the public interest in maintaining the ongoing services of the practitioner in medical practice.

1. Of course, the ongoing competence and fitness of the practitioner includes a reassurance that the Code of Conduct will be respected and obeyed by the practitioner.

1. There is also a public interest in drawing to the notice of other practitioners the need to respect and obey the Code of Conduct.  Cases such as Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 emphasise that these are the relevant considerations in shaping the disciplinary response to professional misconduct.

1. Those mitigating factors were identified as the competence and selfless commitment of the practitioner in caring for his huge patient base, including his willingness to serve the needs of nursing home patients.  He had suffered from depression in the past which had been exacerbated by the strain of the current proceedings.

1. That, of course, was relevant though it would also be seen as largely self-inflicted so far as the exacerbation is concerned.

1. The Medical Tribunal also noted at [91]:

If the respondent was to be suspended, then the need to arrange for his patients to obtain other medical advice would cause them great disruption and difficulty.  The respondent would have to give some explanation to them as to why he was unable to continue to treat them, which would be a matter of shame and embarrassment to him.  The subsequent loss of income would have a very substantial effect on him.  The Tribunal has given consideration to all of these matters.

1. Again, though relevant, the shame and embarrassment and loss of income is self-inflicted and part of the personal and general deterrence appropriate to meet the breach of the Code of Conduct committed by the practitioner.

1. It therefore decided that a period of 12 months suspension from practice was more appropriate than a fine or reprimand.  In addition, the practitioner was directed to undertake a supervisory and assistance program including a sexual misconduct assessment which would assist to avoid future lapses.

1. The suspension was delayed for one month to permit alternative arrangements for the practitioner’s patients, though the Medical Tribunal acknowledged the shortage of general practitioners.

1. That order was dated 25 September 2009.  An appeal was lodged with the Appeals Division of the ACAT (‘the Appeal Tribunal’).  The Appeal Tribunal was asked to set aside the orders made and substitute a reprimand but accepted orders to attend support and counselling and not to take new patients, save if resident in a nursing home or like institution.

1. The practitioner did not dispute the factual basis for the orders made.  It followed that he accepted that he had violated the public’s trust as referred to in the Medical Practitioners and Sexual Misconduct Standards Statement, that is:

....

(2)It is the responsibility of the practitioner to behave responsibly at all times and to maintain professional boundaries with patients.  Any exploitation of the relationship between the patient and the practitioner must be considered a violation of the public’s trust.

1. The Appeal Tribunal was also concerned with the issue as to whether it was relevant or appropriate to engage s 43(2)(b) of the HP Act. It noted that the Original Tribunal had taken the view that it was not necessary for more than one person to be put at risk to engage that provision.

1. The Appeal Tribunal acknowledged the submission of the practitioner that one person being put at risk does not constitute a danger to public safety.

1. However, it did not accept that submission.  In rejecting it, it relied upon comments in Richter v Walton (NSWCA, Kirby P, Priestly JA, O’Keefe AJA, 15 July 1993, unreported), 2 to the effect that misconduct by a practitioner may damage the therapeutic relationship between doctor and patient.  That is (per Kirby P and O’Keefe AJA):

All patients are entitled to approach their medical practitioners secure in the belief that their ills will be treated to the best of the skill and ability of their medical practitioners and without any interference of an improper kind with their persons or in relation to their affairs.  Respecting the vulnerability of those who attend upon them when in need is fundamental to the practice of medicine.

1. The Appeal Tribunal also relied upon a comment by Dowsett J in Re A Medical Practitioner [1995] 2 Qd R 154, 165. It referred to the duty of a medical practitioner to act properly and noted that that duty

... proscribes doing anything likely to undermine public confidence in the individual practitioner or in the profession.

1. That, of course, merely affirms that the standards of conduct required of the practitioner are in place in and for the protection of the public and of the relevant profession.  That is not the same as a finding that any breach of any professional standard will jeopardise the safety of the public.  Certainly, to allow a person unsuited to medical practice to practise exposes members of the public to a risk to their safety.  A practitioner who used his position to seduce patients into sexual activity with him or her would likewise constitute a risk to their safety.

1. The Appeal Tribunal, however, took the view that conduct violating the sexual misconduct standards, being a violation of the public’s trust in the practitioner, thereby placed public safety at risk.

1. Otherwise, the Appeal Tribunal upheld the reasoning of the Medical Tribunal concerning the nature and seriousness of the violation of the doctor/patient boundaries in sexual matters.

1. Indeed, the only error to which the practitioner could point was the finding that his conduct had put public safety at risk.

1. The Appeal Tribunal accepted that reasoning, characterising it as “an appropriately wide view of how the appellant’s breach of the relevant standards might impact on public safety”.

1. What impact that finding had upon the result is not specified or apparent.

1. Testimonials to the appellant’s skill, dedication and character, aside from the breach, were accepted as matters in his favour.  Also favouring a less punitive approach was the number and the situation of the appellant’s many patients, to whom he gave appropriate and, no doubt, much needed and appreciated attention.

1. Curiously, the Appeal Tribunal, though noting the adverse impact on medical services available to the public of suspending the practitioner for 12 months, did not regard that as engaging the concept of ‘public safety’ referred to in s 43 of the HP Act. However, the disadvantage to current and future patients was recognised.

1. It concluded that there was no basis to set aside or vary the original decision.

1. That is the decision appealed from.

1. On the hearing of the appeal the practitioner did not dispute that his conduct warranted disciplinary action.  Rather, he disputed the finding by both tribunals that his sexual relationship had put ‘public safety’ at risk.

1. His submissions pointed out that the three cases relied upon (De Gregory v General Medical Council [1961] AC 957; Richter v Walton (NSWCA, Kirby P, Priestly JA, O’Keefe AJA, 15 July 1993, unreported) 233; Re A Medical Practitioner [1995] 2 Qd R 154) do no more than affirm the proposition that the relevant standard is supported by a public interest in avoiding the harm that will follow to patients if medical practitioners feel free to abuse their doctor/patient relationship by entering into sexual relationships with patients. That is why such behaviour is properly characterised as professional misconduct. It could also be criminal (see s 67(1)(h), Crimes Act 1900 (ACT)). The terms of that subsection point out that consent to sexual activity is negated if the apparent consent is induced “by the abuse by the other person of his or her position of authority over, or professional or other trust in relation to the person”.

1. That provision underlines the seriousness with which a breach of the provision should be viewed even if falling short of criminal behaviour.  As in this case, the result is often a deleterious psychological impact on the patient.  Of course, that might follow from any ill-fated sexual relationship, but a medical practitioner by his or her Hippocratic Oath and the obligations undertaken by the professional Code of Conduct has a special obligation to avoid harm to a patient.

1. The Oath recites (in part):

I will follow that method of treatment which according to my ability and judgment, I consider for the benefit of my patient and abstain from whatever is harmful or mischievous.

1. The practitioner submits, however, that whilst his breach was, accordingly, a serious one, it was erroneous further to characterise the breach as putting “public” safety at risk.  The risk to that one patient he acknowledges but disputes the approach of saying the risk to that one patient equates with a risk to the safety of the public more generally.

1. The first respondent submits on the issue of risk to public safety that the conduct of the practitioner did so, asserting “it is of no moment if the conduct arises from dealings with an individual patient”.

1. Indeed, that is undoubtedly correct.  An individual dealing may be illustrative of a risk to public safety.

1. However, that submission does not address the issue as to whether a dealing with one patient, not affecting any other patient, actual or potential, can itself constitute a risk to public safety.

1. If the exploitative relationship of the practitioner with the subject patient was illustrative of a risk of his repeating that conduct, or of some wider failure to appreciate his professional responsibilities, the community of patients and potential patients could be subject to risk.

1. The concept of a risk to public safety was discussed in South Australia v Totani (2010) 242 CLR 1 where the existence of outlaw motorcycle gangs was said to constitute a risk to public safety. The risk sought to be identified was of members engaging in serious criminal activity.

1. By analogy, the risk here could only be that of the practitioner engaging in conduct breaching the sexual mores defined by the Code of Conduct applicable to medical practitioners.

1. It is apparent from all the evidence that it was not open rationally to conclude that there was any such risk in this particular case.

1. Insofar as the Tribunal determined to the contrary they were clearly in error.

1. However, it is not clear what weight, if any, either Tribunal placed on that consideration.

1. There was no finding that the practitioner was likely to so offend in future, though it was apparent that he needed instruction on the importance and meaning of the professional obligations imposed by the Code of Conduct.

1. It was also relevant to ensure that the penalty reflected the serious public interest in adherence by health professionals generally to the need to avoid inappropriate relationships with patients.

1. I cannot be satisfied that the finding that s 43(2)(b) of the HP Act was applicable did not contribute in some measure to the penalty imposed. That is, however, the only error I can discern. Indeed, I would otherwise endorse the view of the Tribunals that the practitioner’s breach was a serious lapse from professional standards.

1. It seems to me that the error did not cause a different penalty to be imposed than was warranted in the public interest, though it may have contributed to the length of the suspension.  Accordingly, I would vary the Tribunal’s orders only by reducing the suspension period to six months and otherwise confirm the orders made.  If there is any consequential order or directions that need to be made or varied, I will hear the parties.

   I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

   Associate:

   Date:    28 November 2011

Counsel for the Appellant:  Mr R S McIlwaine SC with Mr C McKeown
Solicitor for the Appellant:  Joseph Tallarita
Counsel for the First Respondent:                 Mr G C McCarthy
Solicitor for the First Respondent:                ACT Government Solicitor
Counsel for the Second Respondent:            No appearance
Solicitor for the Second Respondent:            The Registrar, ACT Civil and Administrative
  Tribunal
Date of hearing:  1 September 2011
Date of judgment:  28 November 2011