Physiotherapists Registration Board Of Western Australia and Lipscombe
[2005] WASAT 314
•8 DECEMBER 2005
PHYSIOTHERAPISTS REGISTRATION BOARD OF WESTERN AUSTRALIA and LIPSCOMBE [2005] WASAT 314
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 314 | |
| PHYSIOTHERAPISTS ACT 1950 (WA) | |||
| Case No: | VR:291/2005 | 23 AND 24 AUGUST 2005 | |
| Coram: | JUDGE J CHANEY (DEPUTY PRESIDENT) MR M WIKLUND (SENIOR SESSIONAL MEMBER) MS P WRINGE (SESSIONAL MEMBER) | 8/12/05 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | The respondent's licence to practice as a physiotherapist is suspended for four months | ||
| B | |||
| PDF Version |
| Parties: | PHYSIOTHERAPISTS REGISTRATION BOARD OF WESTERN AUSTRALIA LIPSCOMBE |
Catchwords: | Professions Physiotherapist Sexual relationship with patient Whether allegations properly referred to Tribunal Whether Physiotherapist Board required to make findings of guilt before referral Whether public interest requires removal from register Words and phrases "misconduct in a professional respect" Meaning for the purposes of Physiotherapists Regulations 1951 (WA) |
Legislation: | Physiotherapists Act 1950 (WA), s 16(aa) Physiotherapists Registration Board Rules 1952 (WA), Pt V, r 2533 Physiotherapists Regulations 1951 (WA), reg 20, reg 21 State Administrative Tribunal Act 2004 (WA), s 62(3) Medical Act 1894 (WA), s 13 |
Case References: | Briginshaw v Briginshaw (1938) 60 CLR 336 Jemielita v The Medical Board of Western Australia (Unreported, Supreme Court of WA; Library number 920584, 13 November 1992) Mullany v Psychologists Registration Board (Unreported, Supreme Court of Victoria; BC 9707652; 22 December 1997) NSW Bar Association v Evatt [1968] 117 CLR 177 Re A Medical Practitioner (1995) 2 QldR 154 Alroe v Medical Board of Queensland (Unreported, Supreme Court of Queensland (CA), 8 October 2004) Cato v Medical Board of Victoria (Unreported, Supreme Court of Victoria, 21 June 1985) Childs v Walton (Unreported, New South Wales Court of Appeal, 13 November 1990) Clyne v New South Wales Bar Association (1960) 104 CLR 186 Morris v Psychologists Registration Board (Unreported, Supreme Court of Victoria, 19 December 1997) Pillai v Messiter (No. 2) (1989) 16 NSWLR 197 Psychologists Board of Qld v Robinson [2004] QCA 405 (Unreported, 29 October 2004) RJT v Nurses' Board of Victoria [2002] VSC 498 (Unreported, 29 November 2000) Varnavides v Dental Board of Victoria (Unreported, Supreme Court of Victoria, 1 May 1998) |
Orders | 1. Mr Lipscombe is suspended from practicing as a physiotherapist for a period of 4 months commencing on 14 January 2006 at 4.00pm.,2. The Respondent is ordered to pay the Applicant's costs fixed at $8000.00. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : PHYSIOTHERAPISTS ACT 1950 (WA) CITATION : PHYSIOTHERAPISTS REGISTRATION BOARD OF WESTERN AUSTRALIA and LIPSCOMBE [2005] WASAT 314 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT)
- MR M WIKLUND (SENIOR SESSIONAL MEMBER)
MS P WRINGE (SESSIONAL MEMBER)
- Applicant
AND
LIPSCOMBE
Respondent
Catchwords:
Professions Physiotherapist Sexual relationship with patient Whether allegations properly referred to Tribunal Whether Physiotherapist Board required to make findings of guilt before referral Whether public interest requires removal from register Words and phrases "misconduct in a professional respect" Meaning for the purposes of Physiotherapists Regulations 1951 (WA)
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Legislation:
Physiotherapists Act 1950 (WA), s 16(aa)
Physiotherapists Registration Board Rules 1952 (WA), Pt V, r 2533
Physiotherapists Regulations 1951 (WA), reg 20, reg 21
State Administrative Tribunal Act 2004 (WA), s 62(3)
Medical Act 1894 (WA), s 13
Result:
The respondent's licence to practice as a physiotherapist is suspended for four months
Category: B
Representation:
Counsel:
Applicant : Ms KA Vernon
Respondent : Mr M De Kerloy
Solicitors:
Applicant : Arthur Metaxas & Co
Respondent : Mony De Kerloy
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Jemielita v The Medical Board of Western Australia (Unreported, Supreme Court of WA; Library number 920584, 13 November 1992)
Mullany v Psychologists Registration Board (Unreported, Supreme Court of Victoria; BC 9707652; 22 December 1997)
NSW Bar Association v Evatt [1968] 117 CLR 177
Re A Medical Practitioner (1995) 2 QldR 154
Case(s) also cited:
Alroe v Medical Board of Queensland (Unreported, Supreme Court of Queensland (CA), 8 October 2004)
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Cato v Medical Board of Victoria (Unreported, Supreme Court of Victoria, 21 June 1985)
Childs v Walton (Unreported, New South Wales Court of Appeal, 13 November 1990)
Clyne v New South Wales Bar Association (1960) 104 CLR 186
Morris v Psychologists Registration Board (Unreported, Supreme Court of Victoria, 19 December 1997)
Pillai v Messiter (No. 2) (1989) 16 NSWLR 197
Psychologists Board of Qld v Robinson [2004] QCA 405 (Unreported, 29 October 2004)
RJT v Nurses' Board of Victoria [2002] VSC 498 (Unreported, 29 November 2000)
Varnavides v Dental Board of Victoria (Unreported, Supreme Court of Victoria, 1 May 1998)
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Summary of Tribunal's decision
1 In these proceedings the Physiotherapists Board of Western Australia (the Board) alleged that Mr Lipscombe was guilty of misconduct in a professional respect, or alternatively of improper practices or misconduct in that, on or about 28 January 2005, at his rooms in Mosman Park, he engaged in sexual intercourse with a patient in his care. Alternatively, it is said that he was guilty of misconduct in a professional respect or improper practices or misconduct, in engaging in sexual intercourse with the patient between 5 and 12 February 2005, while she was his patient, at his home.
2 The respondent admitted that he treated the complainant on 28 January 2005 and 2 February 2005 for neck and lower back pain, but denied any sexual relationship at the time of his treatment. He admitted that there was an isolated sexual encounter, but said it took place at his home a few days after the second and final treatment.
3 The issue before the Tribunal was, therefore, when the sexual relationship occurred, and how Mr Lipscombe's conduct is characterised for the purpose of the disciplinary provisions of the Physiotherapists Regulations 1951 (WA).
4 The Tribunal accepted the evidence of the complainant and found that sexual intercourse occurred at Mr Lipscombe's rooms on the afternoon of 28 January 2005 when the complainant returned to complete treatment that had commenced earlier in the day. Having made that finding the Tribunal considered whether in all the circumstances, the public interest required that Mr Lipscombe be struck off the register of physiotherapists. It decided that the public interest would be met by an order that Mr Lipscombe be suspended for a period of four months from practising as a physiotherapist.
Suppression order
5 At the commencement of the hearing, at the request of the Board and without objection by the respondent, the Tribunal made an order under s 62(3) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) that the identity of the patient should not be disclosed, should remain confidential and should not be distributed or published in any way without
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- the express authorisation of the Tribunal. The patient concerned is therefore referred to in these reasons as "the complainant".
6 The Tribunal considered that the protection of the complainant's identity is desirable in the public interest. As a general rule, the confidentiality of medical records should not be defeated by the fact that a person is called upon to give evidence in disciplinary proceedings against a health professional. The public interest in open hearings and published reasons concerning professional disciplinary matters is unaffected by the protection of the confidentiality of medical records. In this case, the desirability of protecting the identity of the complainant is heightened by the nature of the particular allegations. It was for those reasons that the suppression order was made by the Tribunal.
Preliminary issue
7 At the outset of the hearing, the respondent raised an issue as to the jurisdiction of the Tribunal to deal with the application. After hearing argument on that issue, the Tribunal ruled that it did have jurisdiction and gave brief oral reasons for that conclusion. We indicated at that time that more detailed reasons would be provided in our final written reasons.
8 To understand the applicant's contention, it is necessary to understand the provisions of the Physiotherapists Act 1950 (WA) and the Physiotherapists Regulations 1951 relevant to disciplinary proceedings. The legislative framework governing disciplinary proceedings against physiotherapists is unusual, and in urgent need of the reform; which will hopefully be achieved with the passage of a number of bills already tabled or shortly to be tabled in Parliament dealing with various allied health professionals, including physiotherapists.
9 Unlike most professional regulatory legislation, the Physiotherapists Act 1950 does not contain the provisions dealing with the discipline of registered physiotherapists. Rather, s 16 provides that regulations may be made:
"(aa) for regulating the making of allegations in respect of disciplinary matters by the Board to the State Administrative Tribunal and specifying the penalties that may be imposed and disciplinary action, including suspending or cancelling the registration of a physiotherapist, that may be taken by the State Administrative Tribunal in dealing with an allegation."
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10 The Physiotherapists Regulations 1951 include regulations made pursuant to s 16(aa) of the Physiotherapists Act 1950. Regulations 20 and 21 read as follows:
"20. Striking off
If the Board is satisfied after inquiry, which the Board may initiate of its own motion, that any physiotherapists registered in the Register —
(a) before or after registration by the Board was or has been convicted of any offence which in the opinion of the Board renders such physiotherapist unfit to practise as a physiotherapist; or
(b) is guilty of habitual drunkenness, or drunkenness frequently or at short intervals of time, or of addiction to any deleterious drug; or
(c) after registration by the Board has been guilty of misconduct in a professional respect, or has been convicted for the third time of an offence against this Act or the rules or regulations, or has been disqualified from practising as a physiotherapist,
the Board may make an allegation to the State Administrative Tribunal and the Tribunal may, on the hearing and determination of an allegation, order that the name of the person be struck off the Register.
Provided that the expression 'misconduct in a professional respect' shall not include any misconduct which, either from its trivial nature or from the surrounding circumstances does not in the public interest require that the physiotherapist should be struck off the Register.
21. Impropriety or misconduct
If the Board is satisfied that any physiotherapists registered in the Register is guilty of improper practices or misconduct (but not 'misconduct in a professional respect') the Board may make an allegation to the State Administrative Tribunal and the Tribunal may, on the hearing and determination of an allegation —
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- (a) reprimand the person; or
(b) order that the person’s licence be suspended for a period not exceeding 6 months specified in the order."
11 The allegation made to the Tribunal is made under reg 20 or alternatively reg 21. The respondent contended that on a proper construction of reg 20, before the Tribunal could be seised of an allegation under reg 20, the Board must have conducted an inquiry and been satisfied of one of the three matters referred to in the regulation. In relation to an allegation, such as the one brought in these proceedings that the respondent has been guilty of misconduct in a professional respect, the Board must have held an inquiry and been satisfied of the respondent's guilt. Counsel submitted that the scheme of the regulations required that a formal inquiry process be undertaken, with evidence being taken, submissions made, and the Board reaching a conclusion as to the practitioner's guilt so as to enable it to make an allegation to that effect to the State Administrative Tribunal. He submitted that that procedure had not been followed in this case and that, the proceedings not having been properly commenced, the Tribunal had no jurisdiction to deal with the allegations.
12 In this case, the Board received a complaint by letter dated 28 February 2005, and requested that Mr Lipscombe submit a response, which he did in March 2005. At a meeting of the Board on 5 April 2005, the Board made the following resolution:
"The Board resolved that Mr Damien Lipscombe may have breached the Act and directed the Registrar to forward the matter to Mr Arthur Metaxas, Arthur Metaxas & Co, requesting him to prepare a Notice of Allegation to be heard before the State Administrative Tribunal."
13 On 9 May 2005, the Board wrote to its solicitors enclosing a copy of the complaint and Mr Lipscombe's response.
14 The letter continued
"At its last meeting, the Board resolved that on the evidence available, it appeared that Mr Lipscombe may be guilty of a breach of the Act and that further, a complaint should be made out to the State Administrative Tribunal.
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- The Board requests that you draft a State Administrative Tribunal application for it to consider."
15 The solicitors did prepare a draft application and sent it to the Board which considered it at its meeting on 24 May 2005. The Board's minutes record:
"Letter from Mr Arthur Metaxas… enclosing a draft application to the State Administrative Tribunal in relation to Mr Lipscombe received and noted. The Board approved the draft application, and directed the Registrar to instruct Metaxas & Co to proceed with lodging the application."
16 Prior to the commencement of the SAT Act on 1 January 2005, the Board was responsible for adjudication of complaints and for the imposition of disciplinary penalties. The Physiotherapists Act 1950, and the rules and regulations made under it, were all amended to accommodate the changed regulatory regime. Prior to the amendment, reg 20 required the name of a physiotherapist to be struck off the register "if the Board is satisfied after inquiry" of any of the three matters specified in paragraphs (a), (b) and (c), including misconduct in a professional respect. Regulation 21 provided that:
"Any physiotherapist who, after due inquiry by the Board in accordance with the rules, is adjudged by the Board to be guilty of improper practices or misconduct (but not 'misconduct in a professional respect') shall be liable to reprimand or suspension of licence for a period not exceeding 6 months, as the Board may decide."
17 The Physiotherapists Registration Board Rules 1952 (WA) which applied prior to the amendment in January 2005 contained, in Part V, the provisions in relation to complaints against physiotherapists. Rules 25, 26 and 27 remained unchanged after the amendment. They dealt respectively with who may make a complaint, how to make a complaint, and notification of a complaint to the physiotherapist concerned calling on him to lodge an answer to the complaint within seven days. Rules 28–33 dealt with the required procedure after the physiotherapist was called upon to answer the complaint. Those rules required the registrar to convene a meeting of the Board, and to give notice of it to Board Members, the person charged, the complainant and witnesses. The notice was required to include a copy of the complaint and advice that, if the person charged neglects to appear, the Board might
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- proceed in his absence. The rules also dealt with when legal representation was permitted.
18 The repeal of those rules when the amendments occurred in January 2005 is instructive. The repeal indicates that it was not contemplated that formal hearings of the type previously required would occur under the new regime. If, as the respondent contended, a prerequisite to allegation by the Board to the State Administrative Tribunal was a finding of guilt following some type of formal inquiry, the former r 28 – r 33 would presumably have been retained. The fact that they were not supports the conclusion which the Tribunal reached at the commencement of the hearing that, properly construed, reg 20 does not require a formal inquiry and a positive finding of guilt by the Board. Rather, what reg 20 requires is that the Board receive a complaint, give notice of it to the physiotherapist concerned as required by r 27, and then to consider whether on the materials before it, including the physiotherapist's response if any, it appears that some form of misconduct may have occurred. If so, the Board is then at liberty to make an allegation to the State Administrative Tribunal so that the Tribunal can determine that allegation.
19 To construe reg 20 or reg 21 as requiring the Board to conduct a formal hearing and make a determination of guilt before being able to refer the allegation to this Tribunal would defeat the clear legislative intention involved in the introduction of the SAT Act and the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA). That construction would result in two separate hearings into an allegation – one before the Board and the other before the Tribunal. The hearing before the Board would serve no useful purpose. It would subject both the complainant and the physiotherapist to the prospect of repetitive hearings. It cannot be what the legislature intended when it conferred jurisdiction on this Tribunal to adjudicate on allegations of professional misconduct.
20 For those reasons, we concluded that the Board had properly referred the allegation to the Tribunal, and that the Tribunal was seised of jurisdiction to deal with the matter.
The standard of proof
21 In approaching the factual issues in this matter, we are mindful that the allegations against Mr Lipscombe are serious, and have a potentially serious impact on his standing, reputation and livelihood as a physiotherapist. Accordingly, while deciding the issues on the balance of
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- probabilities, it is necessary that we "feel an actual persuasion of the occurrence of events or the existence of facts which are in issue", before making findings adverse to Mr Lipscombe. Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 – 363.
The facts
22 Mr Lipscombe became registered as a physiotherapist in late 1994. In approximately 1997 he began working as a paediatric physiotherapist in Rocky Bay Village, a centre for disabled children.
23 In 2001, Mr Lipscombe commenced treating the complainant's son who suffers from a severe degenerative neuro-muscular condition which requires frequent physiotherapy sessions. According to the complainant, Mr Lipscombe "was very professional during the first two years that she knew him" and she saw him on a regular basis as her son required treatment. According to the complainant, after a while she and the respondent "began to flirt with one another". Mr Lipscombe, in his evidence before the Tribunal, was reluctant to accept that he was aware of the complainant's feelings towards him, but we accept that the complainant and the respondent developed a friendly relationship through their contact at Rocky Bay Village. We are satisfied however that there was nothing inappropriate in Mr Lipscombe's behaviour during that period.
24 Sometime in 2002 or 2003, the complainant rang Mr Lipscombe while he was working at Rocky Bay and asked him out for coffee. He responded by providing a note, through an assistant physiotherapist at Rocky Bay, to the complainant which read "I would love to have coffee with you but I am your son's physio, I hope you understand. Love Damien". Mr Lipscombe thereafter continued to treat the complainant's son, and according to the complainant she "started to become fond of Damien and started to have feelings for him".
25 In the latter half of 2004, the respondent ceased treating the complainant's son at Rocky Bay. That occurred because the complainant's other child had made a comment that "mummy loves Damien", or words to that effect, to one of Mr Lipscombe's colleagues. The complainant also said in evidence that she told people at Rocky Bay that she was fond of Mr Lipscombe and liked him. As a result of those comments, there were meetings of the team treating the complainant's son to discuss the ongoing involvement of the respondent in the child's treatment. Appropriately, it was decided that he should cease involvement in the child's treatment and
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- that other therapists could take over the role previously played by Mr Lipscombe.
26 Earlier in 2004, Mr Lipscombe had established his own physiotherapy practice in Mosman Park. He had continued thereafter to work part-time at Rocky Bay.
27 In January 2005, the complainant hurt her back attempting to lift her son. She obtained the respondent's telephone number by an internet search, and she attempted to contact him to arrange treatment for her back at his private practice in Mosman Park. She left a message. The respondent returned her call and he advised her to obtain a letter of referral from a general practitioner. She obtained a referral from her general practitioner on 27 January 2005, and made an appointment to see the respondent at 11.00 am on the following day. She attended that appointment, and according to Mr Lipscombe, she was a little late. He took an initial history from her and deduced that she suffered from a strained lower back and neck tension. He determined that soft tissue manipulation, intervertebral mobilisation and therapeutic exercise prescription and instruction were the appropriate treatment regime. He treated her by manipulation and mobilisation during that session.
28 There is a dispute as to what occurred following that initial session. According to the complainant, Mr Lipscombe said that he would have to cut the appointment short as he had another appointment. He asked her if she could come back at 2.00 pm that day so that he could finish the session, and she agreed. According to Mr Lipscombe, there was no further attendance by the complainant that day, but he considered one more session would be needed and made an appointment for Friday 5 February 2005 at 12.00 midday. He advised the complainant that the cost was $44.95, and she paid him then by giving him $50 for which he then provided a receipt.
29 The complainant's version of events was that she re-attended at 2.00 pm on 28 January 2005, after having had lunch with her son in Inglewood. When she arrived, Mr Lipscombe was on the telephone and she went to the bathroom to wash. When she went into the treatment room, she said that Mr Lipscombe grabbed her hands and pulled her towards him and kissed her. They then hugged each other before agreeing to "leave it professional" after which they sat down at the office desk and Mr Lipscombe asked her questions about her back and medication she was taking for the pain. He then proceeded to recommence the manipulation of her spine. The complainant said that as the treatment
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- progressed, they engaged in flirtatious conversation which became progressively more suggestive, and the massage became more sexual in nature. Matters progressed to overt sexual contact and ultimately intercourse. Following intercourse, the respondent had a shower, and when both were dressed they went to the front desk where the complainant paid $50 for the treatment.
30 We will return to our findings in relation to the events of 28 January 2005 later.
31 It is common ground that a further consultation occurred on 5 February 2005. Initially it was set down for midday, but because of another engagement, the complainant sent the respondent a text message asking him to put back the appointment or cancel it. According to the complainant, she also said in the text message that she was free that night and that she would love to go on a date with one of the respondent's friends, and asked him to arrange it. (The possibility of Mr Lipscombe arranging a date for the complainant with one of his friends had, according to the complainant, been discussed during the first session on 28 January 2005. Whether there was any response to the suggestion in the text message was not explored in evidence). She sent him a further text message on 3 February 2005 asking the respondent to call her which she said he did. She said that they discussed what had happened at the earlier appointment, and rescheduled the further appointment for 12.30 pm on 5 February 2005.
32 On 5 February 2005, the complainant again attended the practice. Further treatment was administered which Mr Lipscombe said was relatively short because "it was clear the problems in her back and neck were resolved". The complainant's evidence was that the session was interrupted when each of them received mobile phone calls. She said that when Mr Lipscombe's mobile rang he left the room. Her evidence as to what happened when he returned is as follows:
"He asked me a question which I didn't answer then he touched me on the chin and said 'talk to me'. I said I did not understand the question. The physiotherapy session then finished. As I was getting dressed he again said 'talk to me'. I then asked him if he loved his girlfriend and he hesitated about the question. I told him that he didn't know what he wanted and I began to put my top on, take off my shorts and put on my red pants. I walked out of his front office to pay the bill, which was $40. He did not give me a receipt and I did not make another
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- appointment. I started to walk down the stairs and he came after me and said '[The complainant's first name], please talk to me' so I turned around on the stairs and he said 'you don't understand my situation with my girlfriend – we have broken up four times and got back together. I have known you for four years and I have only known her for 18 months'. I said 'sort out your problems' and left to go home."
33 That conversation was not specifically put to Mr Lipscombe in cross-examination. He was asked whether, at the end of that session, he told the complainant that he thought she did not need any more treatment. He responded that he tried to discuss that with her but that she "left the premises and there was no opportunity to discuss things". He said "well as the complainant walked off, I said 'We need to talk. Are you okay? What's going on?'".
34 What is clear from the accounts of both parties is that, at the end of the treatment session of 5 February 2005, during which nothing physically untoward seems to have occurred, the complainant was upset and declined Mr Lipscombe's invitation to talk to him.
35 Following the appointment on 5 February 2005, the complainant sent Mr Lipscombe a text message saying that she was home and that they could talk. Mr Lipscombe did not respond.
36 The parties agree that there was a subsequent telephone discussion between them, but differ as to its content. The complainant said that the respondent was dismissive of her, saying that he was not interested in her and when asked about their sexual encounter, she said that he denied it had occurred. According to Mr Lipscombe, the complainant asked him in that telephone conversation if he would like to meet her, he agreed and arranged to meet at his home. He said that they did meet at his home and "sexual relations between us took place". Mr Lipscombe said a day or two later the complainant telephoned him and asked whether he "wanted to go out" but he advised her he was not interested in a relationship with her.
37 An important issue in the proceedings is when and where the sexual activity, which both parties agree only occurred on one occasion, took place. Our finding is that it took place on 28 January 2005 at the respondent's rooms as described by the complainant. There are two reasons for preferring the complainant's evidence to that of Mr Lipscombe on this important point. The first is that the complainant's version is
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- consistent with an entry she made in her diary for that day. The complainant had been advised by solicitors to maintain a diary for use in connection with resolution of issues with her estranged husband. The diary was produced in evidence. The entry for 28 January 2005 records two visits to the respondent on that day. It records that "he said came [sic] back to finish appointment at 2.00 pm" and "second visted [sic] seeing Damien again about back pain. We had sex". There then follows some other entries about events later that day.
38 The complainant's evidence was that that entry was made on 28 January 2005. There is no reason to reject that suggestion. The complainant rejected the proposition put to her in cross-examination that she had completed the entry sometime later than 28 January 2005. The manner in which the entry is recorded is consistent with the manner of entry of other unrelated entries in the diary. The reference to the second visit at 2.00 pm, which Mr Lipscombe denied had occurred, is strongly supportive of the complainant's version of events.
39 The second reason for preferring the complainant's version is that what happened at the second appointment of 5 February 2005 is most easily explained if the sexual encounter occurred before, not after, that appointment. We think it likely that Mr Lipscombe's unwillingness to embark on a long-term relationship was at least beginning to emerge at that consultation, and it was the tension of that situation which is likely to have led to the complainant's refusal to speak and her hurried departure from the rooms.
40 Accordingly, we find that Mr Lipscombe did engage in sexual intercourse with the complainant, who was then his patient, at his practice premises on the afternoon of 28 January 2005. We also find that the complainant, who, on her own admission, had had "strong feelings for him" for a considerable time was a willing participant. That latter finding does not, of course, excuse or condone Mr Lipscombe's conduct.
41 The complainant made her complaint to the Board on 28 February 2005 after having spoken to a friend, whom she described as a counsellor, and her solicitor who prepared a formal statement. On 30 May 2005 the complainant wrote to the Board advising that she wished to withdraw her complaint. She said that she had contacted the respondent who had apologised for the incident and told her he would never do it again. She said she accepted his apology. In oral evidence she said that she was prompted to withdraw the complaint because Mr Lipscombe had told her he would commit suicide if he lost his job. It
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- became clear, however, that the complainant initiated the topic when she sent a text message to Mr Lipscombe telling him she proposed to withdraw the complaint, and asking him to call her. The respondent did call her and she confirmed that she did not want to proceed with the complaint. While the respondent undoubtedly made some comment to her as to the stress that the complaint had caused him, that was not the reason for the complainant's decision to seek to withdraw the complaint.
42 Although she sought to withdraw the complaint, the complainant at no time sought to withdraw her allegation as to what had happened. Having reviewed the allegation and Mr Lipscombe's response to it, the Board appropriately pursued its allegation in the Tribunal.
Characterisation of the conduct
43 There can be no doubt that sexual involvement of a health professional with a patient amounts to serious professional misconduct.
44 In Re A Medical Practitioner (1995) 2 QldR 154 at 160 – 162, Dowsett J identified a number of themes running through the traditional approach to sexual misconduct by medical practitioners. Those things are:
"(1) The practice of medicine involves intimate access to the body and psyche of the patient.
(2) Such practice may also involve access to the patient's home.
(3) A medical practitioner is therefore in a position of special trust toward and power over a patient.
(4) The need for medical care and the sympathetic way in which such care is likely to be provided render the recipient at risk of becoming emotionally involved with and/or dependent upon the provider.
(5) In some circumstances, exposure to such risk may extend to persons close to the patient, for example to a parent of an infant patient or the spouse of a patient.
(6) A medical practitioner must be aware of these risks and ensure that his or her conduct does not aggravate the position, that no advantage is taken of any such
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- susceptibility, and that there is no abuse of the practitioner's special position.
- (7) A medical practitioner who becomes aware that a patient has developed a romantic attachment to him or her must take steps to sever that attachment. Normally, the doctor and patient relationships should be terminated.
(8) A medical practitioner who becomes romantically attached to a patient should realise that his or her own objectivity and capacity to provide appropriate treatment have been impaired and terminate the doctor and patient relationship.
(9) Where the romantic attachment is solely on the patient's side, whilst it will be unwise to continue treating the patient, it will not necessarily be professional misconduct to do so, save where the efficacy of continued treatment may be impaired by the attachment or where the patient may suffer further harm.
(10) Where there is romantic attachment on the part of the practitioner, it may be professional misconduct not to terminate the doctor and patient relationship, even in the absence of any acts of intimacy. Each case must be considered on its merits. The considerations referred to in para 9 will again be relevant.
(11) It is professional misconduct to engage in acts of intimacy with a patient whilst the doctor and patient relationship continues.
(12) It is professional misconduct to exploit a discontinued professional relationship. Thus a medical practitioner should only commence or continue an association with a former patient if there can be no suggestion that he or she is exploiting a dependency created in the course of the professional relationship.
(13) From the point of view of the profession as a whole and from the public viewpoint, it is as important that the appearance of propriety be maintained in each doctor and patient relationship as that such propriety actually exist. Thus it will be professional misconduct for a medical
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- practitioner to permit the appearance of a romantic relationship with a patient or to lead a patient to believe that he or she has an interest in establishing such a relationship.
- (14) As with all misconduct, individual examples may vary in severity. The more serious the misconduct, the more likely it will be that the interests of the public will dictate removal from the register. It cannot be said that every case of misconduct of this kind will dictate such removal.
(15) These comments apply to male and female medical practitioners, both general practitioners and specialists. The nature of a particular speciality may render the misconduct more serious (eg psychiatrists and gynaecologists).
(16) These observations apply to both heterosexual and homosexual relationships and conduct.
(17) Whilst these observations generally refer to relationships with a patient, they also apply to relationships with persons closely associated with patients, particularly parents of infant patients and spouses of patients.
(18) The gravamen of this misconduct is breach of trust, misuse of power and exploitation of vulnerability. Sexual misconduct is only an example of such misconduct."
45 The principles outlined by Dowsett J are equally applicable to physiotherapists. We agree with the observation made in item 14 of the analysis that not every case of sexual misconduct will dictate the removal from the register. It is necessary to examine the surrounding circumstances of this case to determine whether this is a case in which removal from the register is appropriate.
46 Regulations 20 and 21 of the Physiotherapists Regulations 1951 draw a distinction between "misconduct in a professional respect" and "improper practices" or "misconduct". The Board makes the allegation in the alternative, but its primary contention is that Mr Lipscombe's conduct is properly characterised as misconduct in the professional respect. Whether it is characterised as "misconduct in a professional respect", or as "misconduct" determines the penalties which are open to the Tribunal. In that respect, the structure of the Physiotherapists Regulations 1951 differs
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- from other legislation where different categories of conduct that breaches professional standards attract a range of penalties. For example, s 13 of the Medical Act 1894 (WA)enables allegations to be made against medical practitioners of infamous or improper conduct in a professional respect, dependence on alcohol and addiction to any deleterious drug, gross carelessness, incompetency, failure to comply with conditions on practice or impairment of ability to practice by reason of physical or mental illness. Where any of those matters are established, a range of penalties is available. They include removal from the register, suspension for up to 12 months, a fine or a reprimand. Similarly, where a legal practitioner is found to have engaged in "unsatisfactory conduct", which is defined to include a range of different types of conduct, a wide range of penalties is available to meet the particular circumstances of each particular case.
47 Regulation 20 of the Physiotherapists Regulations 1951 operates differently. The proviso in the final paragraph operates to define the expression "misconduct in a professional respect". It does so by stipulating that the expression "shall not include any misconduct which, either from its trivial nature or from the surrounding circumstances does not in the public interest require that the physiotherapist should be struck off the register". The effect of that proviso is that, in order to determine whether particular conduct is "misconduct in a professional respect", it is first necessary to determine the appropriate penalty for the conduct.
48 It is well established that the object of a penalty for professional misconduct is not punishment but protection of the public – see NSW Bar Association v Evatt [1968] 117 CLR 177 at 183 – 184. The proper approach to professional disciplinary penalties was outlined by Owen J in Jemielita v The Medical Board of Western Australia (Unreported, Supreme Court of WA; Library number 920584, 13 November 1992) at 146 – 147 when he said:
"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 at 201.
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- There is also a need to maintain the high standards and good reputation of the profession generally in the eyes of the community see Zidermann 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 Giordino v Medical Board (1883-84) 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 UK [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 penalties. 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."
49 It is necessary therefore to determine whether, given the findings of the Tribunal as to the conduct and the circumstances in which it occurred, the public interest requires that Mr Lipscombe should be struck off the register. If so, his conduct amounts to "misconduct in a professional respect" for the purposes of the Physiotherapist Regulations 1951. If not, his conduct is properly categorised as misconduct within the meaning of that expression in reg 21.
50 The starting point is that a sexual encounter during the course of treatment is a serious breach of the trust, and exploitation of the vulnerability of a patient. It counts against the practitioner that the history of the patient's attraction to him during the period when he was treating her son should have alerted him to take special precautions to avoid the risk of a personal relationship developing.
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51 In our view, however, public interest does not demand, in the circumstances of this case, that Mr Lipscombe be struck off the register.
52 The primary consideration is the protection of the public. We are satisfied that Mr Lipscombe now fully appreciates that his conduct was unacceptable. The sexual involvement occurred on a single occasion. It was consensual. We accept that Mr Lipscombe is genuinely remorseful about it, and that the complainant accepts his remorse. We are satisfied that there is minimal risk of any repetition of this behaviour by Mr Lipscombe. As a result of these proceedings, Mr Lipscombe has taken the opportunity of speaking to colleagues, and his solicitors, in relation to what is and is not appropriate professional conduct, and has consulted a psychologist in relation to the matter. He has had the benefit of a course on "professional boundaries" put on by Rocky Bay for all professional clinical staff. Although he did not seek out that course, but rather it arose in the ordinary course of training at Rocky Bay, it would doubtless be of benefit to him. We were provided with a number of references from professional colleagues who spoke highly of Mr Lipscombe's professionalism and competence.
53 Apart from protection of the public, the penalty to be imposed must be seen to maintain high standards and the good reputation of the profession generally in the eyes of the community. It must also deter others from like conduct. Those are important objectives. Striking from the register would undoubtedly achieve those objectives. In our view, however, the objectives can also be achieved by imposing a period of suspension from practice. Suspension from practice constitutes a heavy financial penalty sufficient to deter others. It also demonstrates the seriousness with which transgressions of this nature are viewed, and in that way maintains the standards and reputation of the profession generally. Having concluded that in light of the surrounding circumstances the public interest does not require that Mr Lipscombe be struck off the register, his conduct is categorised as misconduct in breach of reg 21.
54 We were referred during argument to a decision of the Medical Board in the matter ofBeckhurst (Unreported, Medical Board of WA; 18 September 2001) which involved a sexual relationship between a doctor and a patient who was being treated for conditions of a psychological and psychiatric nature such that there was a clear risk that the patient was emotionally dependent on the medical practitioner. The board made findings of improper conduct in a professional respect, and imposed a suspension of four months. We also had our attention drawn to
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- the decision of Gillard J in Mullany v Psychologists Registration Board (Unreported, Supreme Court of Victoria; BC 9707652; 22 December 1997) which involved a finding of an intimate relationship between a psychologist and a trainee psychologist under his supervision. The relationship extended for a period of almost three years. Gillard J found that a suspension of nine months was manifestly excessive and imposed a reprimand. In doing so, the court referred to an analysis of decisions of the Medical Board of Victoria with respect to doctors who had been found guilty of professional misconduct by sexual impropriety. It was said that that analysis showed that the longest suspension was some six months.
55 Obviously, each case must be considered on its own facts and circumstances, but, to the extent that other decisions may provide guidance, nothing before us suggests that a finding of a sexual relationship between a health professional and a patient of that professional necessarily calls for striking from the register. In our view, the objectives of a disciplinary punishment are met by the imposition of a term of suspension for four months.
56 We are mindful that it is in the interests of Mr Lipscombe's present patients that arrangements be put in place for their care during the period of time that Mr Lipscombe is suspended from practice. We will hear counsel as to when the period of suspension should commence. It should be the minimum period necessary to enable adequate arrangements to be made for the proper care of patients receiving ongoing treatment.
Orders
57 The above reasons were published to the parties and submissions heard on 8 December 2005 as to the appropriate commencement date for the period of suspension. The Board indicated that its normal expectation would be that a suspension would take place immediately upon delivery of a decision, but that (prior to the establishment of this Tribunal when the Board conducted disciplinary hearings) there was precedent for the Board to delay the commencement of the suspension for as long as four weeks where special circumstances existed. The practitioner sought a delay of three months to early March 2006 before the suspension commenced. The basis of that application was that it would be particularly difficult to put in place arrangements for his patients, some of whom were elderly, in a shorter period, particularly given the intervention of the Christmas/New Year break. The Tribunal considered that the period sought by the respondent was far longer than was appropriate. It accepted that, while it
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- should not be taken that a delay in the commencement of a suspension is appropriate in every case, the public interest in minimising inconvenience and disruption to the treatment of existing patients is served in this case by ordering that the practitioner be suspended from practice for a period of four months commencing at 4:00 pm on 14 January 2006.
I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT
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