Re Bruce Litchfield

[2006] NSWMT 3

New South Wales

Medical Tribunal

CITATION:	RE BRUCE LITCHFIELD [2006] NSWMT 3
TRIBUNAL:	Medical Tribunal
PARTIES:	BRUCE LITCHFIELD
FILE NUMBER(S):	40005 of 2006
CORAM:	Sidis, DCJ - Giuffrida, Dr M - Kok, Dr E - Glass, Assoc Prof A
CATCHWORDS:	Application for reinstatement to the Register of Medical Practitioners
LEGISLATION CITED:	Medical Practice Act 1992 (NSW)
CASES CITED:	HCCC v Litchfield (1997) 41 NSWLR 630
DATES OF HEARING:	17/7/06-19/7/06
DATE OF JUDGMENT:	29 September 2006
LEGAL REPRESENTATIVES:	D Williams - Whitehead Cooper Williams - Solicitor P Byrne SC - E H Pike Counsel R Clark Solicitor HCCC P M Strickland SC Counsel
ORDERS:	1 The application for reinstatement is rejected; 2 Mr Litchfield is to pay the costs of the Health Care Complaints Commission in the proceedings; 3 The Tribunal’s reasons are published; 4 The exhibits may be released

JUDGMENT:

JUDGMENT

Pursuant to Clause 6 of Schedule 2 to the Medical Practice Act 1992 the Tribunal has made a Non Publication Order in respect of the patients referred to in these Reasons.

1 Mr Bruce Litchfield has applied to be reinstated to the register of Medical Practitioners.

2 He was removed from the register in 1997 following a finding of the Medical Tribunal that he was guilty of professional misconduct. His misconduct was serious. It concerned sexual misconduct involving three female patients who lodged formal complaints and a fourth patient who made no formal complaint.

3 The Tribunal’s role is to consider whether, at the current date, the original order for deregistration remains appropriate.

4 The principal issue in deciding whether the order remains appropriate is whether Mr Litchfield can be entrusted with the practice of medicine. This issue generated the following questions:

(1) Does the Tribunal accept that Mr Litchfield has been honest in his evidence that he does not remember much of the sexual misconduct proved in proceedings before the Medical Tribunal in 1996?

(2) Does Mr Litchfield have adequate insight into his misconduct?

(3) Has Mr Litchfield satisfied the Tribunal that it is unlikely that he will re-offend?

ISSUE 1 – REPRESSED MEMORY

5 At the hearing before the 1996 Tribunal Mr Litchfield denied all allegations of sexual misconduct. He continued to deny the allegations in an application for review lodged in September 1999, making the concession that he understood that his manner and actions might have created a wrong perception in the minds of his patients. This application was withdrawn.

6 Mr Litchfield told the current Tribunal that he absolutely accepted the findings of misconduct made by the 1996 Tribunal but that he still could not remember all of the acts of a sexual nature which made up that misconduct. He said his memory had been blocked by a lack of insight and an inability to accept that he could have done such things. He said Dr Phillips, psychiatrist, had cautioned him against reconstructing these events.

7 In respect of the patient JT the complaint was that in May 1987, in the course of treatment, he had taken hold of her hand and placed it on his erect penis. Mr Litchfield said he absolutely accepted that he had done this but he had no memory of it

8 In respect of the patient DM, the allegation was that Mr Litchfield touched her breast without prior warning and under the guise of breast examination. DM was the next patient after JT to consult Mr Litchfield in May 1987. Mr Litchfield said he absolutely accepted that he had done this but he had no memory of it

9 NM complained of inappropriate touching of her breast, inappropriate conduct and inappropriate language in a consultation in March 1992. Mr Litchfield said he absolutely accepted that he had done this but he had no memory of the sexual components of the consultation with NM.

10 LW complained that during a consultation in November 1992 Mr Litchfield inappropriately touched her breasts, perineum and vagina, inappropriately inserted his finger into her vagina and inappropriately moved his finger in and out of her vagina.

11 Mr Litchfield said he absolutely accepted that he had done this but he had no memory of the sexual components of the consultation with LW.

12 Eleven days after the consultation with LW Mr Litchfield was questioned by police. He denied LW’s allegations. He continued to deny them at a subsequent criminal trial, where he was acquitted, and he continued to deny them before the 1996 Tribunal.

13 Mr Litchfield agreed that at the time of the police interview he remembered what had occurred during the consultation with LW. He denied that he deliberately lied to police when he denied the allegations of misconduct.

14 Mr Litchfield agreed that he had informed the 1996 Tribunal that he remembered a considerable amount of the consultation with LW. He denied that he deliberately lied to the 1996 Tribunal when he denied the allegations of misconduct.

15 He denied that he lied to the current Tribunal about the extent to which he remembered the misconduct which he now accepted had occurred. He denied that he claimed to have no memory because he did not want to admit his misconduct.

16 Dr Phillips gave evidence that psychological defences of unconscious denial or conscious suppression did arise when emotionally laden events were involved. He acknowledged that a person’s memory was more likely to be intact at a time close to the incident concerned, as in the case of LW. He said the denials to police and to the 1996 Tribunal might well have been deliberately untrue.

17 He thought Mr Litchfield might have taken a position from which he could not retreat.

18 He stated that insight was not all or nothing but a matter of degree. However, he agreed that the extent of the insight now claimed by Mr Litchfield would be affected if he had not told the truth about his consultation with LW.

ISSUE 2 – INSIGHT

19 In 2002 the Medical Tribunal heard an application for reinstatement brought by Mr Litchfield. In this application Mr Litchfield said that he accepted the findings of the 1996 Tribunal and he accepted that his conduct had been improper. The two psychiatrists he had consulted did not support his unqualified acceptance of the findings of misconduct. The 2002 Tribunal did not accept that Mr Litchfield had been frank in his evidence. The application was rejected.

20 Mr Litchfield claimed that he now had considerable further insight into the weaknesses in his character which had caused him to misbehave. He attributed his increased insight to psychotherapy, particularly that provided by Dr Phillips.

21 He said he had overcome the problem that he could not remember much of the detail of his misbehaviour. He had done this by working on a theoretical basis so that he understood the impulses that operated at the time and had fully addressed them. He was confident he would never again project those impulses onto a patient.

22 Dr Litchfield identified amongst his weaknesses:

(1) inappropriate techniques for breast examination;

(2) blocks in coming to terms with his image of himself and being able to accept his actions;

(3) a predisposition to have sexual impulses with patients;

(4) while not recalling any sexual attraction to the patients concerned or misbehaving to obtain sexual gratification, he had projected onto the patients a want or need for sexual gratification;

(5) insufficient maturity to monitor his feelings; and

(6) insufficiently strong boundaries.

23 Mr Litchfield rejected the proposition that he was hampered in his capacity to understand his misconduct by the fact that he could not remember it.

24 Dr Klug, psychiatrist, reported that Mr Litchfield stated lucidly that he understood the nature of the incidents, the way in which he sought sexual gratification, the harmful effects of his conduct on the patients and the damage he had done to his reputation and that of the medical profession.

25 Dr Phillips maintained an opinion he had provided to the Medical Board in 1997 that it was virtually impossible to change a person’s behaviour unless the person has insight, contrition and a wish to put matters right.

26 Dr Phillips reported, however, that therapy had broken through some of Mr Litchfield’s psychological defences. He said Mr Litchfield had experienced much difficulty in the past in understanding the magnitude of his unethical behaviour and the reasons that it was so potentially damaging to his patients. He said he had particularly rigid psychological defences which he had used to block self scrutiny. These and his capacity to rationalise had prevented him from making rapid progress. Dr Phillips believed that Mr Litchfield now had adequate understanding of his behaviour.

27 Dr Phillips said Mr Litchfield had made slow progress to the point where he now expressed appropriate levels of remorse and contrition.

28 He agreed that therapy would have been easier if Mr Litchfield had been able to deal with the incidents in detail. The consequence of his not remembering was that it had taken him a very long time to gain insight and coming to grips with what he had done had been a painful exercise. Mr Litchfield now had a broad understanding of what had occurred which was a big step forward.

29 References were provided by Dr Walker, cardiologist, Ms Robyn Lamb and Dr Robyn Trompf. All were positive concerning Mr Litchfield’s insight and contrition and expressed confidence that he would not re-offend.

30 Dr Trompf gave evidence that Mr Litchfield had been a thorough, skilled and highly regarded general practitioner with particular strengths in diagnostic medicine. She had accepted Mr Litchfield’s original denials of the allegations of misconduct but said that in the last 12 months he had acknowledged it although he had not told her the details of what occurred. She said he had changed remarkably over this period.

31 She said believed that Mr Litchfield now understood boundaries better, had improved communication skills, appreciated the need to explain procedures to patients and to make sure that they agreed to procedures, rather than proceeding without first talking to the patient about what he proposed to do.

32 Ms Nel has been in a relationship with Mr Litchfield since late 2002. She described him as loving and caring. She said she had asked him to consider his conduct from the point of view of his patients. He had made significant progress by doing this and through psychotherapy so that he now really understood that he was wrong and wanted to go forward. She said treatment by Dr Phillips had made a big difference.

33 In dealing with the application the Tribunal has noted the following negative aspects of the evidence.

34 There were many inconsistencies in the evidence that Mr Litchfield absolutely accepted the findings of the 1996 Tribunal that the incidents occurred as described by the patients concerned and that the purpose of the misconduct was sexual gratification.

35 Stating that he accepted DM’s statement of what occurred, he nevertheless put forward the possibility that he touched her breasts to demonstrate a self examination technique. He agreed that this suggested a therapeutic purpose for touching her breasts which was inconsistent with his evidence that he accepted that he had done so for sexual gratification.

36 Mr Litchfield said that he had not analysed this incident because no formal complaint had been made. He therefore could not say whether he had been seeking sexual gratification.

37 Mr Litchfield said that it was obvious that DM thought something improper had happened and he accepted her interpretation. He later said that that it was completely inappropriate and improper to place his hands on a woman’s breasts without explanation. This indicated that he believed her allegation was the result of poor communication rather than sexual misconduct.

38 NM attended his surgery for medical advice about a problem with her feet. Mr Litchfield said she consented to a breast check and he carried it out in the way in which he had been trained. He accepted that in doing so he made an inappropriate remark about a tan mark on her body.

39 Mr Litchfield did not directly answer when asked if he now acknowledged that the breast examination had been motivated by and carried out for the purposes of sexual gratification as found by the 1996 Tribunal. He said he understood that from the patient’s point of view the remark made her uncomfortable and brought a sexual element into the examination.

40 He also said that he now believed it had been inappropriate to pursue his strong belief in preventative medicine in a medical centre setting. He said that he would avoid a similar complaint in future by changing his technique for breast examination and refraining from making personal comments that could convey sexual connotations.

41 This evidence also suggested that he did not accept that there had been any sexual misconduct on his part during this consultation.

42 He was later asked in evidence if he understood and accepted he had misbehaved as described by NM for sexual gratification. He agreed.

43 Mr Litchfield was asked to tell the Tribunal what he remembered of the consultation with LW. He said this patient’s symptoms prompted him to undertake an abdominal and then internal examination with her consent. He then demonstrated acupressure points and suggested that she listen to relaxation tapes because he thought her symptoms were related to stress.

44 Asked to nominate the aspects of the consultation he thought were unprofessional or improper he referred to:

(1) Remarks made while undertaking the internal examination which he said were inappropriate or contained sexual overtones. He said the remarks were intended to put the patient at ease or were part of a gynaecological history.

(2) He thought it was inappropriate to demonstrate the acupressure points. This appeared to be because he had no sign at the medical centre to indicate that he engaged in techniques of alternative medicine and because he should not have brought alternative medical therapy into an orthodox medical centre. He said the patient was not expecting this sort of treatment.

45 Significantly, Mr Litchfield made no reference in the history he gave to having pulled up LW’s top garments and touching her breasts. He said this was because he had not remembered doing so. He accepted that, on the facts as found by the 1996 Tribunal, he did not carry out an orthodox breast examination. Nor did it appear to have been related to acupressure points. He accepted therefore that his motivation was sexual gratification.

46 Mr Litchfield said that he might have touched LW on the perineal region during the course of the internal examination. He did not remember if he had done so for sexual gratification or if, as found by the 1996 Tribunal, he had touched LW’s perineum and breasts in order to arouse her. He said he accepted the 1996 Tribunal’s finding that he had not done so for any genuine medical purpose.

47 He said he believed that LW might not have made a complaint if he had not demonstrated the acupressure points. This added a sexual element that he had not previously recognised. Having stressed his attachment to alternative medicine, he later acknowledged his introduction of acupressure treatment in this consultation had been sexually motivated.

48 In contrast to his agreement on some occasions during the course of his evidence that he acted for the purpose of sexual gratification, Mr Litchfield also stated that this had not been his purpose. He drew a distinction between this and projecting his sexual needs onto his patients or projecting onto them a want of sexual gratification.

49 Mr Litchfield agreed that Dr Klug’s report of 30 June 2005 indicated an incomplete level of insight into his misconduct. He said he had advanced considerably since this report was written, particularly as a result of Dr Phillips’ treatment.

50 Dr Klug reported that Mr Litchfield had accepted defects in his personality and communication skills which had left him open to the complaints. These he described as immaturity leading to the adoption of sexual overtones, obsessional traits, inappropriately introducing alternative medicine when he had no sign up and the patient did not expect to be shown pressure points, creating sexual overtones in conversation and relating at levels which were too personal.

51 Dr Phillips agreed that sham remorse was useless, that it was plausible that Mr Litchfield had not been truthful with himself and the Tribunal and that this would affect the quality of his insight.

52 He acknowledged that the initial denials of misconduct, particularly in relation to LW, could have been deliberately untrue and that his evidence to the Tribunal that he had never deliberately lied would also affect the quality of his insight.

53 He agreed, that if Mr Litchfield lied to him about the extent to which he remembered the incidents involved, this would affect the foundations of the treatment he provided.

54 He agreed that the risk of re-offence would be increased by an automatic suppression of the memory of the events so that there was no appreciation that there was something different about a particular consultation. He said this appeared to be what happened in the case of LW.

55 He agreed that total denial of an incident increased the level of damage to the patients involved.

56 Dr Phillips in dealing with these issues placed considerable emphasis on the restrictions on practice that he proposed.

57 Dr Trompf said that she believed Mr Litchfield’s initial denials of the conduct alleged against him even in the face of the 1996 Tribunal findings. When he subsequently told her that he accepted those findings she did not ask him why he lied to her.

58 Dr Trompf said she would take Mr Litchfield into the practice that she operated with two other female doctors. She agreed that she would need to trust him and that although she accepted that he would not re-offend she would require, as she did with any male doctor, that he be chaperoned during certain consultations.

ISSUE 3 – THE PROSPECTS OF RE-OFFENCE

59 Mr Litchfield said he recognised that he had breached the trust of his patients and the doctor/patient relationship. He said he was confident he would not re-offend because he would implement strategies to monitor his sexual feelings. Those strategies were:

(1) he would not discuss any sexual arousal with the patient;

(2) he would remain self contained;

(3) he would not undertake any gynaecological procedure or any procedure having anything to do with the female torso;

(4) he would refer the patient to a colleague for future treatment or, if none were available, he would arrange a chaperone;

(5) he would talk to his supervisor;

(6) he would discuss the incident with his psychiatrist.

60 He rejected the proposition that it would be difficult to guarantee that he would not re-offend when he could not remember ever having been sexually attracted to a patient or the precise acts of misconduct the 1996 Tribunal found that he committed.

61 Both Dr Klug and Dr Phillips said they considered it unlikely Mr Litchfield would re-offend. Dr Phillips said there was a small risk that could be managed by the imposition of conditions.

62 Dr Phillips said Mr Litchfield now had more understanding and the capacity to stop and question his behaviour so that he was much less likely to re-offend. The result was, according to Dr Phillips, that Mr Litchfield was suitable for re-registration provided his return to medical practice was appropriately managed.

63 Conditions proposed by Dr Phillips included:

(1) never returning to sole practice;

(2) a period of at least two years in a district or rural hospital to rebuild his medical skills and because this would provide additional safeguards of working in company with others and having chaperones available when needed;

(3) the presence of a chaperone, although the risk was still small if no chaperone was made available.

64 These restrictions were considered by Dr Phillips to be adequate to deal with the problems arising from Mr Litchfield’s capacity for suppression of his memory.

65 Conditions were proposed by HCCC in the event that the application for review succeeded. The Tribunal was reminded that a condition mandating the presence of a chaperone would be inappropriate HCCC v Litchfield (1997) 41 NSWLR 630 .

FINDINGS

66 Dr Klug described Mr Litchfield as discursive, circumstantial and rigid in his responses. He said that Mr Litchfield had been so anxious about his responses to questions that at times it was difficult to decipher clearly what he meant.

67 The Tribunal agrees with Dr Klug’s observations. Mr Litchfield’s answers to many of the questions put to him were rambling. They dealt with hypothesis or theory and gave the impression that Mr Litchfield was attempting to separate himself from his conduct.

68 This did not assist the Tribunal in its task of assessing the continued appropriateness of the order for deregistration.

69 The Tribunal does not accept that Mr Litchfield was honest in his evidence of the extent to which he remembered details of the incidents involving misconduct.

70 The Tribunal accepts as possible the claim that he did not recall the incidents involving JT and NM. These matters were not raised with him until many years after they occurred.

71 It was apparent that Mr Litchfield did in fact remember that he examined DM’s breasts and commented on her tan mark.

72 The Tribunal rejects the evidence that he did not recall parts of the incident involving LW. He was questioned about this incident 11 days after it took place. He gave evidence which suggested that he remembered only aspects of the consultation that he could justify as having some therapeutic basis. He remembered his conversation with LW, the internal examination and the demonstration of acupressure points. His memory did not extend to the examination of her breasts.

73 The Tribunal finds that in respect of the consultation with LW Mr Litchfield was deliberately untruthful in the denials made to police and the 1996 Tribunal. The Tribunal finds that he was similarly untruthful in the evidence concerning this consultation during the current application for review.

74 This dishonesty affected Tribunal hearings in 1996, 2002 and 2006. It also affected the quality of the evidence of Dr Klug and Dr Phillips. Their support was based on acceptance of the integrity of the information provided to them by Mr Litchfield.

75 The Tribunal does not accept that Mr Litchfield has the required level of insight into his misconduct.

76 It was apparent from the summary of the evidence which is set out in these reasons that Mr Litchfield did not fully accept the findings of the 1996 Tribunal. It is not necessarily fatal to an application for reinstatement that a doctor continue to deny the truth of allegations found to have been proved. What is fatal is the inconsistency between an acknowledgment that the allegations were true and the assertion that the conduct involved was in some way justified or misinterpreted.

77 In the Tribunal’s view, this was what Mr Litchfield did in repeatedly inferring that the allegations were based on inadequacies in his communication skills and explanations of medical procedures, introducing preventative or alternative medical techniques and engaging in conversation at personal levels.

78 Of particular concern was his statement that it was likely that LW would not have complained if he had not introduced acupressure into the consultation. This suggested that he accepted no other part of her complaint.

79 There was further inconsistency between his acceptance that his conduct was sexually motivated and his proposition that he projected sexual needs or a want of sexual gratification. This evidence had the appearance of an attempt to minimise the serious nature of his misconduct.

80 The Tribunal was not satisfied that Mr Litchfield would not re-offend if reinstated to the register of medical practitioners. This conclusion was reached because it was apparent that Mr Litchfield has not yet come to terms with his misconduct and that he did not, as indicated by Dr Phillips, have a broad understanding of the nature or significance of that misconduct.

81 For these reasons the application is rejected.

ORDERS

1 The application for reinstatement is rejected.

2 Mr Litchfield is to pay the costs of the Health Care Complaints Commission in the proceedings.

3 The Tribunal’s reasons are published.

4 The exhibits may be released.

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