Skehan v Medical Board of Australia
[2012] VSCA 9
•3 February 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2011 0177
| DR MICHAEL SKEHAN | Applicant |
| v | |
| MEDICAL BOARD OF AUSTRALIA | Respondent |
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| JUDGES | NEAVE JA AND KYROU AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 3 February 2012 |
| DATE OF JUDGMENT | 3 February 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 9 |
| JUDGMENT APPEALED FROM | Medical Board of Australia v Skehan [2011] VCAT 2424; Medical Board of Australia v Skehan (No 2) [2011] VCAT 1935 |
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Application for leave to appeal on question of law − Victorian Civil and Administrative Tribunal Act 1998 s 148(1) − male medical practitioner − alleged professional misconduct – inappropriate emotional and sexual relationship with female patient/former patient –failure to exercise reasonable care and skill – dishonest record keeping – whether findings of Tribunal open on evidence − whether cancellation (rather than suspension) of registration within range of dispositions available − Leave to appeal refused.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr D Curtain QC, with Ms F Ryan | John W Ball & Sons |
| For the Respondent | Mr S Donoghue SC, with Ms A Robertson | Minter Ellison |
NEAVE JA:
KYROU AJA:
The applicant, Dr Michael John Skehan, seeks leave to appeal, on a question of law, under s 148(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998, against orders made by the Victorian Civil and Administrative Tribunal (‘Tribunal’) on 12 October 2011. The orders cancelled his registration as a medical practitioner and disqualified him from re-applying for registration for a period of 18 months. The applicant also seeks an extension of time within which to file the above application.
The orders against which Dr Skehan seeks leave to appeal were made in proceedings referred to the Tribunal by the Medical Board of Australia (‘Board’), alleging that Dr Skehan had engaged in ‘unprofessional conduct’, as defined in s 3 of the Medical Practice Act 1994, for conduct occurring between 1998 and 30 June 2007, and for ‘professional misconduct’ as defined in s 3 of the Health Professions Registration Act 2005 for conduct occurring after 1 July 2007, when that Act came into operation.[1] Since the difference between unprofessional conduct and professional misconduct has no significance in this leave application, we will refer hereafter to ‘professional misconduct’.
[1]The parties agreed that the meaning of these expressions is the same under either Act.
Background
Dr Skehan, who was 56 years old at the date of judgment, had practised as a general practitioner in Ascot Vale for 27 years. In December 2005, he separated from his second wife, with whom he has two daughters aged in their twenties.
Jane Wood[2] became Dr Skehan’s patient in 1988, and regularly consulted him for around 20 years, when she was between 26 and 46 years old, on a range of medical issues, including pregnancy and general gynaecological problems.
[2]An order was made by the Tribunal on 15 November 2010 that the name of any patient or former patient of Dr Skehan not be published or made available to the public. This judgment uses the pseudonyms adopted in the Tribunal’s judgment.
Ms Wood’s husband, John Wood, had also been a patient of Dr Skehan since 1986. Dr Skehan was also the general practitioner for the Woods’ children and other family members.
Over time, Dr Skehan became a close personal friend of the Woods and members of their extended family. He (and his family) attended numerous dinners and other social outings with the Wood family, and the two families went on joint holidays.
Mr and Ms Wood were married in 1979 and have two children, aged 25 and 17 years. The couple separated in late 2007, when Ms Wood moved into her own bedroom. Ms Wood left the marital home on 2 February 2008 and went to live in an apartment in the block of flats in which Dr Skehan lived. She and her husband are now divorced, and Ms Wood and Dr Skehan are in an intimate relationship.
The Board conducted an investigation into Dr Skehan’s conduct following a complaint made by Mr Wood in January 2008, alleging that Dr Skehan had a sexual relationship with Ms Wood, while she was his patient. The matter was referred to the Tribunal in February 2010. The Board relied on the following allegations of professional misconduct.
Allegation 1
Since in or around 1998, Dr Michael Skehan (Dr Skehan) has transgressed professional boundaries by engaging in an inappropriate personal and/or emotional relationship with his patient, Ms Jane Wood (Ms Wood) and, to a more limited extent, with Ms Wood’s immediate and extended family members, most of whom are, or were, also patients of Dr Skehan in and to the extent that his conduct involved:
(a) the exploitation of his relationships with Ms Wood and/or members of her family in pursuit of his own sexual desires and/or emotional needs and/or financial advantage; and/or
(b) the formation, or an appreciable risk of the formation, of an inappropriate emotional attachment and/or sexual relationship between himself and Ms Wood; and/or
(c) the perception, or an appreciable risk of the perception amongst members of Ms Wood’s family, of the formation of an inappropriate emotional attachment and/or sexual relationship between himself and Ms Wood.
Particulars.
The particulars include, but are not limited to:
(a)During this period, on various occasions, Dr Skehan went out to dinner with Ms Wood and her husband, Mr Wood; and/or
(b)During this period, Dr Skehan accepted an invitation to obtain a mobile phone as part of Ms Wood’s business mobile phone plan; and/or
(ba)During this period, from at least 15 October 2003, had frequent telephone contact with Ms Wood; and/or
(c)In or around 1998, Dr Skehan and members of his immediate family went on holiday to Port Douglas with Ms Wood and her immediate family; and/or
(d)Between in or around 1999 and 2001, Dr Skehan and members of his immediate family went on holiday to the Grampians with Ms Wood and her immediate family; and/or
(e)In or around February 2007, Ms Wood changed the mailing address for her business mobile phone bills to Dr Skehan’s home address; and/or
(ea)Between 25 February 2007 and 27 February 2007, met with and associated with Ms Wood in Sydney and on the flight back to Melbourne by prior arrangement with Ms Wood; and/or
(f)In or around March and April 2007, Dr Skehan and his two daughters went to Bali to holiday with Ms Wood and the following members of her family:
(i)her son, Matthew;
(ii)her mother [name deleted]; and
(iii)her sister, Hannah and her two children; and/or
(g)In or around early 2008, Dr Skehan and his two daughters went on a holiday to Thailand with Ms Wood and her son, Matthew; and/or
(h)From in or around February 2008, following Ms Wood’s separation from Mr Wood, on numerous occasions, Dr Skehan has gone out to dinner with Ms Wood, including with her son and with other friends.
Allegation 2
Since in or around January or February 2008, Dr Skehan has engaged in unprofessional conduct…in that he has engaged in an inappropriate sexual relationship with his patient and/or former patient Ms Wood, which included betraying the trust of Ms Wood’s husband, Mr Wood, who is also one of Dr Skehan’s former patients.
Allegation three
Between in or around March 1997 and in or around November 2007, Dr Skehan failed to exercise the skill and care of a reasonably competent medical practitioner in relation to his clinical management of his patient and/or former patient, Mr Wood.
Particulars
The particulars include, but are not limited to:
(a)In or around 1997 and/or May 2002 and/or December 2004, Dr Skehan did not adequately report test results to Mr Wood and/or did not explain to Mr Wood the significance of test results in relation to Mr Wood’s prostate-specific antigen levels; and/or
(b)Between in or around March 1997 and in or around November 2007, Dr Skehan did not conduct a digital rectal examination of Mr Wood and/or undertake further investigation into Mr Wood’s elevated prostate‑specific antigen levels and/or reported rectal bleeding; and/or
(c)Between in or around March 1997 and in or around November 2007, Dr Skehan did not provide Mr Wood with a referral to a specialist in relation to his elevated prostate‑specific antigen levels and/or reported rectal bleeding.
…
Allegation four
On or about 17 March 2007, Dr Skehan engaged in unprofessional conduct within the meaning of paragraph (a) and/or (b) and/or (c) of the definition of ‘unprofessional conduct’ in section 3(1) of the MP Act in that he created clinical notes of a consultation and/or produced a medical certificate in relation to his patient, Mr Wood, in circumstances where no consultation and/or examination by Dr Skehan of Mr Wood relating to that date had actually occurred.
The Tribunal’s factual findings
In their evidence during the Tribunal hearing, both Dr Skehan and Ms Wood said that the doctor/patient relationship between them ceased in September 2007. The Tribunal was satisfied that it was still in existence on 19 March 2008, when Dr Skehan ordered blood tests for Ms Wood.
During the hearing, Dr Skehan was asked whether the lack of telephone contact between him and Ms Wood when they both visited Sydney at the same time implied that they were together. Dr Skehan then conceded that he had ‘developed and maintained a relationship with [Ms Wood] that was inappropriately close’ while she was still his patient. However, both he and Ms Wood denied that they had been in a sexual relationship prior to January 2009.
In cross-examination, Ms Wood denied that Dr Skehan had taken advantage of her, and described herself as being in an ‘equal’ relationship with him. However, she described him as being ‘obviously on a higher pedestal’ as her doctor.
The Tribunal made adverse findings about the credit of both Dr Skehan and Ms Wood. In its judgment,[3] it noted that the gravity of the allegations and the effect of an adverse finding on Dr Skehan required it to apply the Briginshaw[4] approach in deciding whether the Board had proved the allegations on the balance of probabilities. In relation to allegation 1, the Tribunal found that:
Between February 2006 and February 2008, Dr Michael John Skehan engaged in an inappropriate personal and emotional relationship with his patient Jane Wood, which in all likelihood involved sexual intimacy in February 2006, February 2007 and in January 2008.
This was a grave transgression of the ethical boundaries by Dr Skehan in his conduct as a medical practitioner.
Additionally, because of the doctor/patient relationship and the inappropriate personal relationship Dr Skehan shared with Ms Wood, he obtained a financial advantage to which he was not entitled in that, as a member of a mobile phone plan connected to Ms Wood’s business, he did not pay for his mobile telephone bill for a period of a little less than 12 months. It is not possible to quantify the financial advantage obtained but it was for an appreciable amount.[5]
[3]Vice President Judge A Howard and members Dr A Reddy and Mr B Collopy.
[4]Briginshaw vBriginshaw (1938) 60 CLR 336.
[5]Medical Board of Australia v Skehan [2011] VCAT 2424 (‘Judgment’) 2.
It held that the breach of professional standards covered by allegation 1 was:
aggravated in that whilst it was on foot the practitioner continued to treat Mr Wood for at least two years which was a grievous breach of trust Dr Skehan was expected to share with Mr Wood, and that patient was entitled to receive from his doctor. This was none more evident than when Dr Skehan was purporting to provide marital counselling to Mr Wood in late 2007.[6]
[6]Ibid [228].
The Tribunal’s finding was made on the basis of the following:
·the amount of telephone contact between Dr Skehan and Ms Wood between 2006 and 2008, which averaged around 300 calls and texts between them per month.
·Dr Skehan’s failure to dispute that he and Ms Wood had travelled to Sydney in February 2006 and February 2007, when she attended trade fairs. In 2006, they travelled to Sydney and returned on the same flight. In 2007, they took separate flights to Sydney but returned together.
·The Tribunal’s satisfaction that during these ‘clandestine visits’, the couple ‘stayed together and, in all likelihood, engaged in sexual activity.’ This was based on a number of matters, including the lack of telephone contact between them while they were in Sydney, contrary to their normal pattern of communicating with each other several times a day. The Tribunal rejected Dr Skehan and Ms Wood’s evidence that they did not stay together in Sydney as ‘palpably false’ and said that the only reasonable inference was that they had lied persistently in claiming not to remember where they stayed and what they did.
·Evidence of a romantic text message sent by Dr Skehan to Ms Wood on 8 September 2007, which said ‘Once again im [sic] sitting here dreaming of you’. The Tribunal found that this showed they had an inappropriate emotional relationship.
·Two admissions made by Ms Wood confirming the existence of an inappropriate relationship with Dr Skehan. The first admission occurred during a family meeting which probably occurred in December 2007, after she had moved into a separate room in the matrimonial home. At that meeting, she had admitted that she had a ‘new boyfriend’, and was ‘dating him’, although she later denied saying this. On 22 January 2008, a few days before she left the marital home and moved into Dr Skehan’s apartment block, she admitted to a counsellor in a joint counselling session with Mr Wood that she was in an intimate relationship with Dr Skehan.
·The financial advantage obtained by Dr Skehan by joining Ms Wood’s family business mobile phone plan, and his failure to pay for his own mobile phone usage for around 12 months.
In relation to allegation 2, the Tribunal found that there was no evidence from which it could be inferred that the likely sexual activity in 2006 and 2007 continued after January 2008. However, the evidence indicated that their inappropriate emotional relationship had continued and that sexual activity occurred from January 2009 until the date of the hearing.
Because of the 20 year doctor/patient relationship between Dr Skehan and Ms Wood, the Tribunal found that it was not possible to conclude that the relationship between the parties was the product of an ‘equal and independent decision taken jointly’ by them, even if it did not begin until 2009. The Tribunal referred to Re a Medical Practitioner,[7] in which Dowsett J discussed the extent of a doctor’s obligation to refrain from sexual activity with patients and former patients, and to the guidelines dealing with professional misconduct, including the formation of a sexual relationship between a doctor and a patient or former patient, which had been issued by the Board.[8] It concluded that ‘it was not appropriate for Dr Skehan to have commenced a sexual relationship with Ms Wood at any time after she ceased to be his patient, and certainly not since January 2009’.[9]
[7][1995] 2 Qd R 154.
[8]Medical Board of Australia, Good Medical Practice: A Code of Conduct for Doctors in Australia (2006).
[9]Judgment [239].
In relation to allegation 3, the Tribunal found that Dr Skehan had failed to exercise proper skill and care in relation to his clinical management of Mr Wood’s elevated Prostate Specific Antigen test results. In particular, it was accepted that Dr Skehan had failed to report the test results in a timely fashion, and to properly discuss these results with his patient. He had also failed to perform a digital rectal examination of Mr Wood when it was appropriate for him to do so.
Allegation 4 was also found proven.
The Tribunal’s orders
In June 2011 the Tribunal heard the parties as to the orders which should be made. In deciding whether Dr Skehan’s registration should be suspended for a period or cancelled, so that he would have to apply to be registered again, the Tribunal noted that ‘there would, no doubt, be a benefit for [Dr Skehan’s] patients if he were allowed to continue to conduct his practice’.[10]
[10]Medical Board of Australia v Skehan (No 2) [2011] VCAT 1935 (‘Reasons’) [36].
In the case of allegation 1, it held that Dr Skehan had engaged in a grave transgression of the professional ethical boundaries by having an inappropriate personal and emotional relationship with Ms Wood, while she was his patient. The Tribunal was not satisfied that Dr Skehan had ‘appropriate insight’ into the seriousness of his conduct and noted that he had lied on oath about the nature of the relationship during the hearing. His concession that the relationship was inappropriately close was made only during the course of the hearing after it ‘became painfully obvious that he had gone on a clandestine visit to Sydney with his patient’.[11]
[11]Ibid [11].
So far as the particular relating to Dr Skehan’s obtaining use of a mobile phone as part of Ms Wood’s business mobile phone plan, the Tribunal said that:
The applicant made no submissions as to this aspect of the matter, and we accept [Dr Skehan’s] submission that it was Dr Skehan’s patient who encouraged him to become involved in the arrangement. She was clearly not taken advantage of in any financial sense and, as pointed out, there was a period of time during which Dr Skehan paid the entire telephone account after the invoice was transferred to him at his address. Not surprisingly, [Dr Skehan] submits this calls into question the extent of the net financial gain derived by Dr Skehan. We think this a fair point and, in all the circumstances, do not propose to weigh this aspect against [Dr Skehan] in formulating the appropriate determination.[12]
[12]Ibid [18].
So far as allegation 2 was concerned, the Tribunal referred to its previous finding that it was a clear breach of Dr Skehan’s ethical obligations to enter into a sexual relationship with Ms Wood in January 2009, having regard to the inappropriate relationship which had previously existed between him and Ms Wood while she was his patient. The reasons continued as follows:
It is well to remember that whilst there was no evidence of exploitation of [Ms Wood] by Dr Skehan, it was conceded by [Dr Skehan] that it was fair to assume there was a power imbalance between them.
It was also pointed out that [Ms Wood] had a forceful and independent personality, which we accept, and particularly, that one of the character witnesses called at the hearing said that there were elements of naivety about Dr Skehan, and that if his emotions were heightened it was possible he could be exploited by another. We take these matters into account in favour of [Dr Skehan] and, of course, we treat the present relationship as a mutually consensual one.
Moreover, on the evidence, it is not possible to highlight any particular detriment suffered by [Ms Wood] as a result of the present relationship. Nor is there any evidence to suggest that Dr Skehan took advantage of any significant vulnerability of his partner in deciding to enter into the present relationship.
While it is true that the Tribunal has no power to prevent Dr Skehan from continuing his present relationship, he made a serious error of judgment in deciding to pursue the inappropriate emotional relationship once the doctor/patient relationship concluded. The determination is aimed at generally deterring other practitioners from making such an error of judgment, whether it be based upon a grave breach of ethics in the first instance or not.[13]
[13]Ibid [23]-[26].
The Tribunal said that Dr Skehan’s failure to exercise proper skill in dealing with Mr Wood’s elevated PSA test results would not, of itself, have amounted to professional misconduct and would have permitted a determination short of suspension or cancellation of registration.
However, the Tribunal considered that Dr Skehan’s dishonest conduct in pretending to consult with and examine Mr Wood, and providing a false medical certificate in relation to his fitness to travel by air, amounted to unprofessional conduct of a serious nature.[14]
[14]The Board claimed that this was done so that Ms Wood could claim travel insurance, though there was no evidence she had actually done so.
The Tribunal concluded that the seriousness of Dr Skehan’s conduct taken as a whole, and his lack of remorse and insight, required some weight to be given to specific deterrence. It was also necessary that other practitioners be deterred from acting in a similar way. On that basis, it determined that his registration should be cancelled and that he be disqualified from practising for a period of 18 months.
Application for leave to appeal
Proposed grounds 1 to 3
The applicant did not challenge, and could not have succeeded in challenging, the Tribunal’s factual findings, on the basis that they were not open to it. Rather, the first three proposed grounds of appeal (which were expressed in the form of questions) argue that the applicant was denied procedural fairness. They are as follows.
1. Whether it was open to the Tribunal to find that the Applicant engaged in a relationship between February 2006 and February 2008 which in all likelihood involved sexual intimacy, when there was no allegation to that effect.
2. Whether it was open to the Tribunal to find that Dr Skehan had obtained a financial advantage to which he was not entitled when there was no allegation to that effect.
3. Whether the Tribunal wrongly admitted evidence in relation to sexual conduct between the Applicant and [Ms Wood] between February 2006 and February 2008 when there was no allegation to that effect.[15]
[15]Emphasis added.
In support of the first and third proposed grounds, the applicant challenges the admission of evidence on the existence of a sexual relationship between him and Ms Wood between February 2006 and February 2008, and the Tribunal’s finding on that issue, on the basis that ‘no allegation of a sexual relationship was made’. He contends that the Tribunal went ‘beyond the bounds’ of the Board’s allegations, which were confined to alleging an inappropriate personal and/or emotional relationship.
Conclusion on grounds 1 to 3
In Secretary to Department of Premier and Cabinet v Hulls,[16] this Court stated that:
The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.[17]
[16][1999] 3 VR 331.
[17]Ibid 337.
In our view, the applicant has not shown that there is any real or significant argument to be put on proposed grounds one to three.
So far as allegation 1 is concerned, the particulars were amended at the beginning of the hearing to make it clear that the Board would rely on evidence that Ms Wood and Dr Skehan travelled to Sydney in January 2007.[18] This allegation covered the formation of a sexual relationship between the applicant and Ms Wood in the period between 1998 and 30 June 2007 when Dr Skehan conceded that Ms Wood was his patient. Specific reference to a sexual relationship is made in paragraphs (a), (b) and (c) of allegation 1. Allegation 2 referred to the period ‘since in or around January 2008’.
[18]Flight records had been provided to Dr Skehan 10 days earlier showing that this was the case: Judgment [104].
The argument that it could be inferred that the couple were together during the trip to Sydney in February 2006 because they had made no phone calls to each other over the relevant period, was not raised by the Board’s counsel until the matter was being heard. The fact that this allegation had not previously been particularised was considered by the Tribunal, which was entirely satisfied that Dr Skehan understood the nature of the allegations being made against him.[19]
[19]Judgment [12]-17].
That was clearly the case. The question whether such a relationship existed took up a substantial part of the evidence and the applicant could have been in no doubt as to the significance of his trips to Sydney with Ms Wood or of the alleged occurrence of sexual activity between them on those occasions.
Further, the Tribunal dealt with this complaint during the hearing. It said:
Before leaving this topic, we note that some concern was expressed by counsel for [Dr Skehan] concerning the late reliance of the [Board] upon the evidence of the couple’s visit to Sydney in February 2006. As to this we adopt the telling observation of the Court of Appeal, when considering a complaint about the lack of specificity in the pleadings, in Carter and State of Victoria v Walker[20] namely ‘the question turns upon the manner in which the parties conducted their cases, rather than upon the niceties of the pleadings.’[21]
Whilst there were no pleadings in the matter and VCAT’s hearings are to be conducted with as little formality and technicality as possible, the Tribunal must act fairly and it is bound by the rules of natural justice.[22] Ultimately reference to the 2006 visit did not form part of the specified particulars of the first allegation. However, we are satisfied that the significance of this evidence, as relied upon by the [Board], was well understood by [Dr Skehan] and that he had ample opportunity to deal with it, including an offer by the Tribunal to take further time if necessary (none was sought).[23] Indeed, as the matter unfolded, there was no dispute from Dr Skehan that he had made the two trips to Sydney with Ms Wood in February 2006 and 2007; and in his written submission, it was made clear that these were examples of the inappropriately close relationship which he had with her.[24]
[20][2010] VSCA 340 (Buchanan, Ashley and Weinberg JJA), citing with approval a passage from the judgment of Isaacs and Rich JJ in Gould v Mount Oxide Mines Ltd (1916) 22 CLR 490, 517.
[21]Ibid [43].
[22]Victorian Civil and Administrative Tribunal Act 1998, ss 97 and 98.
[23]There was no objection by Dr Skehan to the tender of the 2006 airline records (Exhibit P), at which time it was made clear they went not only to Ms Wood’s credit but also generally to facts in issue in that they supported the applicant’s contention that there was an improper relationship between the couple in February 2006.
[24]Judgment [144]-[145].
The same may be said in relation to the second proposed ground of appeal. Particular (b) of allegation 1 specifically refers to an acceptance of an invitation by Dr Skehan to obtain a mobile phone as part of Ms Wood’s business mobile phone plan. We note that Dr Skehan conceded he had done so. Moreover, although the Tribunal concluded that this was evidence of an inappropriate personal relationship between Dr Skehan and Ms Wood, it did not take account of this matter in formulating its determination that Dr Skehan’s registration should be cancelled for 18 months.
Thus, even if, contrary to our view, the Tribunal should not have taken the mobile phone matter into account, the applicant did not suffer any injustice as a consequence of it having done so.
Proposed ground 4
The fourth proposed ground of appeal 4 was as follows:
Whether, having regard to the Applicant’s impugned conduct and the circumstances of the case, the disposition made by the Tribunal:
(a) was outside the range of dispositions which were open to the Tribunal in respect of the Applicant’s impugned conduct; alternatively
(b) was such that no Tribunal acting reasonably could have made it.
The applicant argues that it would be unjust to allow the Tribunal’s disposition to stand, in circumstances where:
The Tribunal’s decision has deprived the Applicant of his livelihood and will prevent him from carrying on practice for at least 18 months. It is to be noted that the Applicant’s registration has been cancelled, not suspended. At the end of the 18 month period, the Applicant may apply for registration but that application may well be rejected.
Conclusion on ground 4
We would not grant leave on the basis of this ground either. Prior to the making of the determination, it was conceded by the applicant that the findings amounted to professional misconduct. In relation to the finding of ‘grave conduct’ involving a sexual relationship, the Tribunal remarked that this relationship ‘went on for a considerable period of time and involved subterfuge and deception. It was no mere transient lapse of judgment on the doctor’s part’.[25] Whilst Dr Skehan was involved in that relationship with Ms Wood, he provided marital counselling to her husband and medical treatment to other family members.
[25]Judgment [228].
In addition, Dr Skehan engaged in serious professional misconduct by providing a false medical certificate. The Tribunal properly took account of Dr Skehan’s lack of insight into the seriousness of his conduct and the potential risk to future patients caused by his lack of appreciation that he had engaged in a grave conduct involving transgression of important ethical boundaries. It was also appropriate for the Tribunal to have regard to the need to deter other practitioners from acting in a similar manner.
The only matter which initially troubled us was the Tribunal’s statement that it would have been ‘inappropriate for Dr Skehan to have commenced a sexual relationship with this particular patient at any time after she ceased to be his patient’.[26] If the orders of the Tribunal had disqualified the applicant for a lengthy period, we might have considered that it was at least arguable that the determination was influenced by that view and that the disqualification of Dr Skehan for continuing to maintain a relationship with Ms Wood was unduly harsh.
[26]Reasons [22] (emphasis added).
However, when read in context, it is clear that this statement reflected the existence of the prior relationship which existed between Dr Skehan and Ms Wood while she was his patient. As the Tribunal said:
there may be circumstances where a passing attendance on a patient for a relatively unremarkable medical issue might not prevent a doctor from commencing an intimate relationship with that patient some 12 months later. However, Dr Skehan’s position is obviously very different. He treated his present partner for something like two decades for a host of medical issues, some of them involving intimate physical and psychological aspects.
It is simply not possible to conclude that the intimate relationship now on foot was the product of an equal and independent decision taken jointly by Dr Skehan and [Ms Wood]. The nature of the doctor/patient relationship, and the inappropriate emotional relationship they shared, must be taken to have played a significant part in that decision, to the detriment of [Ms Wood]. Nor is it possible to conclude that Dr Skehan was not taking advantage of an attachment or dependency arising from the inappropriate relationship which pre-dated the current one.[27]
[27]Reasons [21]-[22].
The Tribunal had stated earlier that ‘there is no absolute rule that a general practitioner could not establish an emotional or intimate relationship with a former patient’ and that the position ‘would depend…on the nature of the pre-existing professional relationship, its length, and the circumstances and timeliness in which a later relationship developed’.[28] Moreover, the Tribunal’s finding in relation to allegation 2 was that ‘[s]ince January 2009 to the present, Dr Skehan has engaged in an inappropriate sexual relationship with [Ms Wood].’[29] The Tribunal did not purport to make a finding that a continuation of the sexual relationship beyond the date of the Tribunal’s decision would constitute professional misconduct.
[28]Judgment [77].
[29]Ibid 2, [242] (emphasis added).
The Tribunal’s reference in [26] of its Reasons to Dr Skehan’s error of judgment in continuing his relationship with Ms Wood after she ceased to be his patient must be read in the context of its reasons as a whole. The error refers to conduct which the Tribunal found was professional misconduct.[30] The Tribunal found that the nature of Dr Skehan’s personal relationship with Ms Wood, both prior to and following the cessation of their professional relationship, was inappropriate.[31]
[30]Ibid [241].
[31]Ibid [238]-[242].
As we have said, the finding that Dr Skehan’s conduct amounted to professional misconduct was well open to it. The determination reflected the need to deter other practitioners from pursuing inappropriate emotional relationships with patients. The order disqualifying Dr Skehan from practice for 18 months from 9 November 2011 was not disproportionate to the professional misconduct which the Tribunal found had occurred. In our view, it is not reasonably arguable that the Tribunal’s decision was unreasonable or fell outside the range of dispositions open to it.
Since the application was only out of time by a matter of days, we would grant an extension of time, which does not appear to have been opposed by the Board. However, for the above reasons, we would refuse leave to appeal.
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